Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement): (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates; (b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent; (c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person; (d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan; (e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it; (f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices; (g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims; (h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated; (i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and (j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Fluor Daniel Gti Inc), Merger Agreement (International Technology Corp)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which such approval shall not to be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
(a) and except as required by applicable Law, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, practice and to the extent consistent therewith, it the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributorslandlords, creditorslicensors, lessorslicensees, employees and business associates. Notwithstanding the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (i) as otherwise contemplated by this Agreement, (ii) as Parent may approve in writing (such approval not to be unreasonably withheld), (iii) as is required by applicable Law or by any Governmental Entity or (iv) as set forth in Section 6.1 of the Company Disclosure Schedule, the Company will not and will not permit its Subsidiaries to:
(a) adopt or propose any change in its certificate of incorporation (including by way of any certificates of designation) or bylaws or other applicable governing instruments;
(b) it shall notmerge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company;
(ic) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $500,000 in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement, all of which are identified on Section 5.1(q) of the Company Disclosure Schedule;
(d) issue, sell or otherwise sell, dispose of of, grant, transfer or subject to any Lien, or authorize the issuance, sale, disposition, grant or transfer of or Lien (other than Permitted Liens) on, any shares of capital stock of the Company or any of its Subsidiaries' Capital , including, without limitation shares of Series A Junior Participating Preferred Stock owned by it; (in each case, other than (i) the issuance or grant of Shares upon the exercise of Company Options that are outstanding as of the date hereof, or (ii) amend its charterthe issuance of capital stock or other equity interests by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), bylaws or, except or securities convertible or exchangeable into or exercisable for any amendment which will not hindersuch capital stock or other equity interests, delay or make more costly any options, warrants or other rights of any kind to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding acquire any shares of Capital Stock; such capital stock or such convertible or exchangeable securities;
(ive) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $500,000 in the aggregate;
(f) declare, set aside aside, make or pay any dividend or other distribution, payable in cash, stock stock, property or property in otherwise, with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit to any of its Subsidiaries capital stock (except for (i) one quarterly dividend to be issued by the Company in its fourth fiscal quarter ended March 3, 2007, not to exceed $0.04 per Share in the aggregate, and (ii) dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(g) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable into or exercisable for any shares of its Capital Stock; or capital stock (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub the acquisition of any such capital stock or another wholly-owned Subsidiary other securities tendered by current or former employees or directors in connection with the exercise of Parentcurrently outstanding Company Options);
(ch) neither it nor incur any indebtedness for borrowed money or guaranty such indebtedness of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to Subsidiaries acquire any debt security of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments Subsidiaries, except in each case for any severance or termination pay toindebtedness, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicespractice, for borrowed money under credit facilities, lines of credit and other debt or (ii) terminateborrowing arrangements reflected in the Financial Statements; provided, establishhowever that neither the Company nor its Subsidiaries shall draw down on any amounts under its existing credit facilities except to the extent necessary to comply with letters of credit, adoptunder credit facilities, enter into, make any new grants lines of credit and other debt or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate borrowing arrangements reflected in the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring Company's most recent financial statements included in the Company Reports issued from time to time in the ordinary and usual course of business in an amount not to exceed $1,000,000 in the aggregate outstanding at any given time;
(i) make any material changes with respect to accounting policies or procedures, except as required by changes in GAAP or Law or by a Governmental Entity;
(j) make, alter or revoke any Tax accounting method or material Tax election, or settle or compromise any Tax liability or otherwise pay or consent to any assessment as the result of an audit, file any amended Tax Return, enter into any closing agreement relating to Taxes, or waive or extend the statute of limitations in respect of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(ek) neither it nor transfer, sell, lease, exclusively license, surrender, divest, cancel, abandon or otherwise dispose of, or subject to any of its Subsidiaries shallLien, except as may be required as a result of a change in law any assets, product lines or in GAAP, change any businesses of the accounting principles Company or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableSubsidiaries, other than inventory, supplies and other assets in the ordinary course of business consistent with past practicespractice;
(gl) neither it nor except as expressly contemplated by this Agreement, required pursuant to the Benefit Plans in effect on the date of this Agreement disclosed in Section 5.1(h)(i) of the Company Disclosure Schedule, pursuant to any employment or separation agreement disclosed in Section 5.1(h)(vi) of the Company Disclosure Schedule or any collective bargaining agreement disclosed in Section 5.1(m) of the Company Disclosure Schedule, or as otherwise required by applicable Law, including to comply with Section 409A of the Code, (i) grant or provide any severance or termination payments or benefits to any officers, employee, independent contractor or consultant of the Company or any of its Subsidiaries, (ii) increase (or commit to increase) the compensation, perquisites or benefits payable to any director, officer, employee, independent contractor or consultant of the Company or any of its Subsidiaries, except for increases with respect to non-executive employees in the ordinary course of business consistent with past practice, (iii) enter into any new, or amend the terms of any existing, employment agreement or Benefit Plan with any member of management of the Company or any of its Subsidiaries, (iv) grant any equity or equity-based awards that may be settled in Shares or any other equity securities of the Company or any of its Subsidiaries shall settle or compromise the value of which is linked directly or indirectly, in whole or in part, to the price or value of any material claims Shares or litigation other equity securities of the Company or any of its Subsidiaries, (vi) accelerate the vesting or payment of compensation payable or benefits provided or to become payable or provided to any current or former director, officer, employee, independent contractor or consultant, (vii) change the terms of any outstanding Company Option, or (viii) terminate or materially amend any existing, or adopt any new, Benefit Plan (other than changes that may be necessary to comply with applicable Law, in each case that do not materially increase the costs of any such Benefit Plans); provided, however, that the manner of any change, amendment or acceleration to comply with Section 409A of the Code must be approved by Parent, which approval shall not be unreasonably withheld or delayed);
(m) enter into, amend or extend any collective bargaining agreement or other labor agreement;
(n) enter into, amend or modify any agreement of its material Contracts or waive, release or assign any material rights or claimsthe type described in Section 5.1(s);
(ho) neither it nor make any capital expenditures in excess of $100,000 individually or $300,000 in the aggregate over and above those capital expenditures identified in the capital expenditure plan set forth in Section 6.1(o) of the Company Disclosure Schedule;
(p) enter into any rights agreement, establish any stockholder rights plan (or similar plan commonly referred to as a "poison pill") or enter into any Contract (in each case other than the Stock Plans existing on the date hereof and Company Options issued thereunder) under which the Company or any of its Subsidiaries shall make is or may become obligated to sell or otherwise issue, register, redeem, repurchase, vote, transfer or dispose of any Tax election shares of its capital stock or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;other securities; or
(iq) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations except as provided in Section 6.2 and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will Section 6.3, agree, authorize or enter into any agreement commit to do any of the foregoing. Nothing contained in this Agreement (including, without limitation, this Section 6.1) is intended to give Parent, directly or indirectly, the right to control or direct the Company's or any of its Subsidiaries' operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent's or any of its Subsidiaries' operations. Prior to the Effective Time, each of Parent, Merger Sub and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries' respective operations. Subject to the immediately preceding paragraph, in connection with the continued operation of the Company and the Subsidiaries, the Company will reasonably confer in good faith on a regular basis with one or more representatives of Parent, designated by Parent to the Company in writing, regarding operational matters, and the general status of ongoing operations of the Company and will notify Parent promptly of any event or occurrence that has had or may reasonably be expected to have a Company Material Adverse Effect or that, individually or in the aggregate, has materially delayed or impaired, or would reasonably be expected to materially delay or impair, consummation of the transactions contemplated by this Agreement, or that, individually or in the aggregate, has resulted, or would reasonably be expected to result, in the failure by the Company to comply with or satisfy in any material respect any condition set forth in Section 7.1 or 7.2; provided, however, that no such notification shall affect the covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. The Company acknowledges that Parent does not and will not waive any rights it may have under this Agreement as a result of such notice or consultations.
Appears in 2 contracts
Interim Operations. The Company (a) Yankees covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to until the earlier of the Effective Time (or the termination of this Agreement in accordance with its terms, unless Parent Braves shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):Agreement or except as otherwise set forth in Section 4.1(a) of the Yankees Disclosure Letter:
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatespractice;
(bii) (A) it shall not, (i) not issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) it shall not amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiC) it shall not split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) it shall not declare, set aside or pay any dividend type of dividend, whether payable in cash, stock or property property, in respect of any Capital Stockcapital stock other than the quarterly dividends payable by Yankees (in an amount per share not to exceed its most recent quarterly per share dividend and with the timing of such dividend to be consistent with past practice) or, subject to Section 4.1(a)(viii) of the Yankees Disclosure Letter, dividends payable by its direct or indirect wholly owned Subsidiaries to it or another of its direct or indirectly wholly owned Subsidiaries; and (vE) it shall not repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any interests or shares of its capital stock, as applicable, or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) neither it nor any of its Subsidiaries shall (A) issue, sell, pledge, dispose of or encumber (v) any shares of, or (w) securities payable in, convertible into or exchangeable or exercisable for, or (x) options, warrants, calls, commitments or rights of any kind to acquire, capital stock of any class, as appropriate, or (y) any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with its stockholders on any matter or any other property or assets other than Yankees Shares issuable pursuant to stock-based awards outstanding on or awarded prior to the date hereof under the Yankees Stock Plans; (B) (1) increase the amount of net indebtedness for borrowed money, including any guarantee of such indebtedness, by $100,000,000 in excess of the net indebtedness set forth in the Yankees Financial Statement as of December 31, 2012 (it being understood that net indebtedness shall be calculated as the amount of debt less the sum of the amount of cash and marketable securities, in each case, set forth in the Yankees Financial Statements as of December 31, 2012; it being further understood that notwithstanding the amount set forth in such Yankees Financial Statements, the non-U.S. dollar-denominated portion of such calculation shall be determined using the exchange rates in effect as of the date hereof without regard to any subsequent changes in such rates) or (2) incur any additional indebtedness for borrowed money with a tenor of greater than 90 days, including any guarantee of such indebtedness; or (C) make or authorize or commit for any capital expenditures, except for in accordance with the 2013 capital expenditure target for Yankees that has been provided to Braves prior to the date of this Agreement or such other capital expenditures targets as may be agreed by Yankees and Braves (provided that (1) Yankees shall be permitted to make or authorize or commit for any capital expenditures in an amount that is between 75% and 110% of its capital expenditure target and (2) if the Effective Time shall not have occurred on or prior to December 31, 2013, then, for purposes of this Section 4.1(a)(iii), Yankees’s capital expenditure target will be adjusted upwards to take into account the number of days between December 31, 2013 and the Effective Time and assuming that the 2014 capital expenditure target shall be equal to the 2013 capital expenditure target);
(iv) except as required pursuant to existing written, binding agreements in effect prior to the date hereof and set forth in Section 4.1(a)(iv) of the Yankees Disclosure Letter, or as otherwise required by applicable Law, neither Yankees nor any of its Subsidiaries shall (A) grant or provide any severance or termination payments or benefits to any director, officer or employee of Yankees or any of its Subsidiaries, (B) increase in any manner the compensation, bonus, pension, welfare, fringe, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of Yankees or any of its Subsidiaries (other than increases in base salary in the ordinary course of business for employees who are not officers), (C) become a party to, establish, adopt, commence participation in, amend or terminate any stock option plan or other stock-based compensation plan, or any compensation, severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement with or for the benefit of any current or former directors, officers, employees or consultants of Yankees or its Subsidiaries (or newly hired employees) or amend the terms of any outstanding equity-based awards, (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (E) enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (G) terminate without cause the employment of any member of the management committee of Yankees, or (H) forgive any loans or issue any loans to directors, officers or employees of Yankees or any of its Subsidiaries;
(v) neither Yankees nor any of its Subsidiaries shall lease, license, transfer, exchange or swap, mortgage (including securitizations), or otherwise dispose (whether by way of merger, consolidation, sale of stock or assets, or otherwise) of any material portion of its assets, including the capital stock of Subsidiaries (it being understood that the foregoing shall not prohibit the sale of inventory in the ordinary course of business), except for (i) dispositions of assets that in total have an aggregate fair market value of less than $50,000,000;
(vi) neither Yankees nor any of its Subsidiaries shall (A) acquire or invest in or agree to acquire or invest in (whether by merger, consolidation, purchase or otherwise) any Person or assets, in which the expected gross expenditures and commitments (including the amount of any indebtedness assumed) (I) for all such acquisitions exceeds, in the aggregate, $50,000,000 or (II) is reasonably likely, individually or in the aggregate, to delay the satisfaction of the conditions set forth in Article V hereof or prevent the satisfaction of such conditions or (B) enter into any joint venture, partnership or similar agreement with any Person;
(vii) subject to Section 4.13, neither Yankees nor any of its Subsidiaries shall (A) settle or compromise any material claims or litigation if such settlement or compromise would involve, individually or together with all such other settlements or compromises, the payment of money by Yankees or its Subsidiaries of $60,000,000 (provided that Yankees shall consult in good faith with respect to any such proposed settlement or compromise individually in excess of $20,000,000) or more or would involve any admission of material wrongdoing or any material conduct requirement or restriction by Yankees or its Subsidiaries, (B) modify, amend or terminate in any material respect any of its Material Contracts or waive, release or assign any material rights or claims thereunder in excess of $10,000,000 individually or in the aggregate or (C) enter into any new clearing services agreement or arrangement or modify or amend in any material respect any existing clearing services agreement or arrangement to extend the term or to increase the commitments of Yankees or any of its subsidiaries thereunder;
(viii) except to the extent otherwise required by Law, neither Yankees nor any of its Subsidiaries shall (A) make or change any Tax election, change any method of Tax accounting, file any amended Tax Return, or settle or compromise any audit or proceeding relating to Taxes, in each case, if such action would reasonably be expected to have an adverse effect on Yankees and its Subsidiaries that is material; (B) take any action specified in Section 4.1(a)(viii)(B) of the Yankees Disclosure Letter; or (C) permit any material insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated except in the ordinary and usual course of business;
(ix) neither Yankees nor any of its Subsidiaries shall permit any change in its financial accounting principles, policies or practice (including any of its practices with respect to accounts receivable or accounts payable), except to the extent that any such changes in financial accounting principles, policies or practices shall be required by changes in GAAP;
(x) neither Yankees nor any of its Subsidiaries shall enter into any Contract that includes a “non-compete,” exclusivity or similar provision that would materially restrict the business of Braves or any of its Subsidiaries (including Yankees and its Subsidiaries) following the Effective Time;
(xi) except as permitted pursuant to Section 4.1(a)(iv), neither Yankees nor any of its Subsidiaries shall enter into any Contract between itself, on the one hand, and any of its employees, officers or directors, on the other hand;
(xii) neither Yankees nor any of its Subsidiaries shall knowingly take or omit to take any action if such action or failure to act would be reasonably likely to prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(xiii) neither Yankees nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing set forth in Section 4.1(a)(i) through Section 4.1(a)(xii) if Yankees would be prohibited by the terms of Section 4.1(a)(i) through Section 4.1(a)(xii) from doing the foregoing; and
(xiv) it shall not fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder.
(b) Braves covenants and agrees as to itself and its Subsidiaries that, after the date hereof and until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, unless Yankees shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement or except as otherwise set forth in Section 4.1(a) of the Braves Disclosure Letter:
(i) (A) it shall not split, combine or reclassify its outstanding shares of capital stock; (B) it shall not declare, set aside or pay any type of dividend, whether payable in cash, stock or property, in respect of any of its capital stock; and (C) it shall not directly or indirectly repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; capital stock, if such repurchase or (vi) adopt acquisition is at a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentprice above the then market value;
(cii) it shall not issue, sell, dispose of or grant, or authorize the issuance, sale, disposition or grant of, any shares of any class of its capital stock except (A) for fair market value or (B) upon the vesting of restricted stock units or the exercise of options, warrants, convertible securities or other rights of any kind to acquire any of its capital stock which were issued with an exercise or conversion price of not less than the market price at the time of issuance; provided, however, that the foregoing shall not prohibit issuances of common stock, restricted stock units, options or rights as part of normal employee compensation in the ordinary course of business; and provided, further, that this clause (B) shall not prohibit the issuance of capital stock, restricted stock units, options, warrants, convertible securities or other rights in connection with any equity financing contemplated by Braves in connection with the transactions contemplated by this Agreement;
(iii) it shall not fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(iv) neither it nor any of its Subsidiaries shall (iknowingly take or omit to take any action if such action or failure to act would be reasonably likely to prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or Code;
(v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it Braves nor any of its Subsidiaries shall acquire (iother than with respect to any agreements entered into prior to the date of this Agreement) enter into any new agreements or commitments for any severance agree to acquire (whether by merger, consolidation, purchase or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directorsotherwise, which have been previously publically disclosed or provided to Parent and (bYankees) reasonable severance payments made to employees any Person or assets that is reasonably likely, individually or in the ordinary course of business and consistent with past practicesaggregate, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue delay in any material respectrespects the satisfaction of the conditions set forth in Article V hereof or prevent the satisfaction of such conditions; and
(jvi) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing set forth in Section 4.1(b)(i) through Section 4.1(b)(v) if it would be prohibited by the terms of Section 4.1(b)(i) through Section 4.1(b)(v) from doing the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (NYSE Euronext), Merger Agreement (Intercontinentalexchange Inc)
Interim Operations. The Except with Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause each of the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior (i) to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the conduct its business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and use its Subsidiaries shall use commercially reasonable efforts to (A) preserve its business organization intact and organizations intact, (B) maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, and (C) keep available the services of its present employees and agents; and (ii) not to (other than as set forth in the corresponding section of the Seller Disclosure Letter):
(a) amend its Organizational Documents;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize merge or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentPerson;
(c) neither it nor any acquire assets outside of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practicespractice from any other Person with a value or purchase price in the aggregate in excess of $50,000,000.00 or that would have any possibility of preventing or delaying the Closing beyond the Termination Date;
(d) issue, sell, pledge, dispose of, grant, transfer, Encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guaranteeguarantee or other Encumbrance of, sell any Equity Interests of the Company or otherwise dispose any of or subject to any Lien its Subsidiaries (other than the issuance of Equity Interests (i) by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary or (ii) by the Company to Seller), securities convertible or exchangeable into, or exercisable for, any Equity Interests or any options, warrants or other rights of any kind to acquire any such Equity Interests or such convertible or exchangeable securities;
(e) create or incur any Encumbrance (other than a Permitted LiensEncumbrance) on the assets of the Company or any of its Subsidiaries that, individually or in the aggregate, is material to the Company or any of its Subsidiaries;
(f) make any loans, advances, guarantees or capital contributions to or investments in any Person, other than (x) any other property of the foregoing to or assets on behalf of the Company or incur any direct or modify any material indebtedness indirect wholly-owned Subsidiary of the Company, or other liability (except for additional borrowings y) in the ordinary course under lines of credit business consistent with past practice and which do not have any possibility of preventing or delaying the Closing beyond the Termination Date;
(g) declare, set aside, make or pay any (i) cash distributions or dividends in existence on any month that in the aggregate are in excess of the lesser of (A) $150,000,000.00 and (B) the amount of Free Cash Flow generated by the Company and its Subsidiaries for the preceding month, prorated for the month in which this Agreement is entered into, and for the month in which the Closing occurs; provided, that if distributions or dividends in respect of any month shall have been less than $150,000,000.00 as a result of the foregoing limitation or otherwise, Seller shall be entitled to make additional cash distributions at any time or from time to time up to an amount equal to the lesser of (x) Free Cash Flow for the period since the date hereof); of this Agreement and (iiiy) assumethe product of (A) $150,000,000.00 and (B) the number of whole and, guaranteewithout duplication, endorse partial months in such period, or otherwise become liable (ii) non-cash distributions or responsible (whether directlydividends, contingently payable in stock, property or otherwise, with respect to any of its Equity Interests (except for non-cash distributions paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its Equity Interests;
(h) (i) incur any Indebtedness for borrowed money, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the obligations Company or any of its Subsidiaries, except for Indebtedness incurred in the ordinary course of business consistent with past practice that is satisfied in full at or prior to the Closing, or (ii) amend, modify, supplement or waive the terms of any existing Indebtedness, debt securities or warrants or other Person rights to acquire debt securities of the Company or any of its Subsidiaries, except in the ordinary course of business consistent with past practices and practice;
(i) except as contemplated by the capital budget set forth in the business plan set forth on Schedule 4.16 of the Seller Disclosure Letter, make or authorize any payment of, or accrual or commitment for, capital expenditures in excess of $25,000,000.00 in the aggregate in any consecutive six-month period (or $50,000,000.00 in the event of an increase in data demand in the Business significantly in excess of the demand anticipated on the date hereof);
(j) amend, supplement, waive, terminate, assign, convey, encumber or otherwise transfer, in whole or in part, its rights or interests under or in any Material Contract, or enter into any Intercompany Contract or Company Contract that would be a Material Contract if in effect as of the date hereof;
(k) enter into any Intercompany Contract or amend, modify or waive any Intercompany Contract in any manner that would result in the Company or its Subsidiaries paying to the other parties thereto aggregate consideration greater than that provided for obligations in the copies of Subsidiaries Intercompany Contracts provided to Purchaser pursuant to Section 4.2(a)(v);
(l) make any changes with respect to material financial accounting policies or procedures, except as required by changes in GAAP;
(m) (i) enter into any line of business in any geographic area other than the current lines of business of the Company incurred and its Subsidiaries and products and services reasonably ancillary thereto (including ancillary Internet services), including any current line of business and products and services reasonably ancillary thereto, in any geographic area for which the Company or any of its Subsidiaries currently holds a FCC License authorizing the conduct of such business, product or service in such geographic area, (ii) except as currently conducted, engage in the ordinary course conduct of business; (iv) make any loans to business in any state that would require the receipt or transfer of a Communications License or any other Person (other than License issued by any Governmental Entity authorizing operation or provision of any communication services or foreign country that would require the receipt or transfer of, or application for, a License to Subsidiaries the extent such License would reasonably be expected to prevent, materially delay or materially impair the consummation of the Transaction, or (iii) enter into any business or operations outside of the United States;
(n) file for any Company orLicense the receipt of which would reasonably be likely to prevent, customary loans materially impair or advances materially delay consummation of the Transaction;
(o) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $15,000,000.00;
(p) except to employees the extent otherwise required by Law, make or change any Tax election, change any method of Tax accounting or settle or finally resolve any controversy with respect to Taxes for an amount that materially exceeds the amount reserved with respect thereto in connection with business-related travel the most recent Financial Statements, in each case, if such action would have an adverse affect on the Company or Purchaser that is more than immaterial;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of (i) any Communications Licenses or wireless spectrum and (ii) except in the ordinary course of business consistent with past practices); practice, any other Licenses, assets, operations, rights, product lines, businesses or (v) make any commitments forinterests therein of the Company or its Subsidiaries that are material to the Business, make or authorize any capital expenditures other than pursuant to Company Contracts in amounts less than $50,000 individually and $250,000 in effect prior to the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Persondate hereof;
(dr) except other than as may be required by applicable Law or pursuant to comply with applicable law or by the existing contractual commitmentsterms and conditions of any Benefit Plan as in effect on the date hereof, neither it nor any of its Subsidiaries shall (i) enter into terminate, establish, adopt or amend any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any Benefit Plan other than the adoption of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees annual Benefit Plans in the ordinary course of business and consistent with past practicespractice and amendments to health and welfare plans (other than severance plans) that do not increase benefits or result in materially increased administrative costs, (ii) grant any salary or wage increase, other than to increase salary and wages for employees by no more than 4% in the aggregate in the ordinary course of business consistent with past practice, (iii) pay aggregate bonus or incentive compensation other than in the ordinary course consistent with past practice, (iv) (x) grant any new compensation award, other than bonus awards and cash-based long term incentive compensation awards, in each case in amounts and on terms that are in the ordinary course of business consistent with past practice; provided, however, that no new awards shall be granted under the Phantom Share Plan, (y) amend the terms of outstanding compensation awards other than in a manner that does not increase the amounts payable or accelerate the timing of any payment under such awards and in the ordinary course of business consistent with past practice, or (iiz) terminatechange the compensation opportunity under any Benefit Plan, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increasesv) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, severance other than in the ordinary course of business consistent with past practicespractice in connection with employees’ entering into and not revoking a release of claims against the Company in connection with terminations of employment, (vi) take any action to accelerate the vesting or payment, or fund or secure the payment, of any amounts under any Benefit Plan, (vii) change any assumptions used to calculate funding or contribution obligations under any Benefit Plan, other than as required by GAAP, (viii) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries, or (ix) voluntarily establish or adopt any collective bargaining agreement;
(gs) neither it nor transfer, sell, lease, license, divest or otherwise dispose of any transmission towers owned or leased by the Company or any of its Subsidiaries (it being understood that the foregoing shall settle or compromise any material claims or litigation or terminate or materially amend or modify any not apply to the decommisions of its material Contracts or waive, release or assign any material rights or claimstowers in the ordinary course of business consistent with past practice);
(ht) neither it nor purchase, lease or otherwise acquire any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedwireless spectrum;
(iu) neither it nor make a fundamental change to any of important elements of the network technologies or principal billing systems of the Company and its Subsidiaries shall take any action or omit to take any action that would cause any (excluding system upgrades, equipment replacement and similar matters, in each case within the same fundamental framework of its representations network technologies and warranties herein to become untrue in any material respectbilling systems); andor
(jv) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (At&t Inc.)
Interim Operations. The Company (a) NYSE Euronext covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to until the earlier of the Effective Time (or the termination of this Agreement in accordance with its terms, unless Parent NASDAQ OMX and ICE shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):Agreement (including with respect to Section 4.14) or except as otherwise set forth in Section 4.1 of the NYSE Euronext Disclosure Letter:
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andpractice, and NYSE Euronext shall take such actions as are necessary so that (1) if the number of any restricted stock units issued after January 1, 2011 by NYSE Euronext or its Subsidiaries (“NYSE Euronext RSUs”) exceeds the number of any NYSE Euronext RSUs forfeited after January 1, 2011 (any such excess, the “Excess Number”), then NYSE Euronext shall cause a number of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ equal to the extent consistent therewithExcess Number to be settled in cash instead of NYSE Euronext Shares and (2) any stock options issued after January 1, it and its Subsidiaries 2011 by NYSE Euronext shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesbe settled in cash instead of NYSE Euronext Shares;
(bii) (A) it shall not, (i) not issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) it shall not amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiC) it shall not split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) it shall not declare, set aside or pay any dividend type of dividend, whether payable in cash, stock or property property, in respect of any Capital Stockcapital stock other than the quarterly dividends payable by NYSE Euronext in an amount per share not to exceed its most recent quarterly per share dividend and with the timing of such dividend to be consistent with past practice) or dividends payable by its direct or indirect wholly owned Subsidiaries to it or another of its direct or indirectly wholly owned Subsidiaries; and (vE) it shall not repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any interests or shares of its Capital Stock capital stock, as applicable, or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or solely except as may be necessary to effect the Internal Reorganization, issue, sell or otherwise sell, pledge, dispose of or subject to any Lien encumber (other than Permitted Liensv) any shares of, or (w) securities convertible into or exchangeable or exercisable for, or (x) options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class class, as appropriate, or (y) any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with its stockholders on any matter or any Voting Debt (other property or assets other than NYSE Euronext Shares issuable pursuant to Company Options stock-based awards outstanding on or awarded prior to the date hereof)hereof under the NYSE Euronext Stock Plans; (iiB) other than in the ordinary and usual course of business and consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (practice and other than Permitted Liens) any other property or assets or incur or modify any material incurrence of indebtedness or other liability (except for additional borrowings that is less than $235,000,000 in the ordinary course under lines aggregate, incur any long-term indebtedness for borrowed money (including any guarantee of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practicessuch indebtedness); or (vC) make any commitments for, make or authorize or commit for any capital expenditures, except for in accordance with the 2011 capital expenditure target for NYSE Euronext that has been provided to NASDAQ OMX and ICE prior to the date of this Agreement or such other capital expenditures targets as may be agreed by NYSE Euronext, NASDAQ OMX and ICE (provided that (1) NYSE Euronext shall be permitted to make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually an amount that is between 75% and $250,000 in 110% of its capital expenditure target and (2) if the aggregate orEffective Time shall not have occurred on or prior to December 31, by any means2011, make any acquisition ofthen, or investment infor purposes of this Section 4.1(a)(iii), assets or stock NYSE Euronext’s capital expenditure target will be adjusted upwards to take into account the number of any other Persondays between December 31, 2011 and the Effective Time and assuming that the 2012 capital expenditure target shall be equal to the 2011 capital expenditure target);
(div) except as may be required to comply with applicable law or by existing contractual commitments, neither it NYSE Euronext nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iiA) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation Benefit Plan, as the case may be, or any other arrangement that would be a NYSE Euronext Stock Plan if in effect on the date hereof other than offer letters provided to newly hired or promoted employees (but excluding offer letters to executive officers of NYSE Euronext and Benefit Plan its Subsidiaries or to employees whose target compensation is in excess of the average compensation of executive officers of NYSE Euronext or its Subsidiaries or of the employees, as the case may be), or (B) except for increases occurring in the ordinary and usual course of business consistent with past practice, increase or accelerate the salary, wage, bonus or other compensation of any employees or directors fringe benefits of any director, officer or employee or enter into any contract, agreement, commitment or arrangement to do any of the foregoing;
(v) neither NYSE Euronext nor any of its Subsidiaries shall lease, license, transfer, exchange or swap, mortgage (including securitizations), or otherwise dispose (whether by way of merger, consolidation, sale of stock or assets, or otherwise) of any material portion of its assets, including the capital stock of Subsidiaries (it being understood that the foregoing shall not prohibit the sale of inventory in the ordinary course of business), except for increases occurring (A) dispositions of assets that in total have an aggregate fair market value of less than $135,000,000, or (B) transactions between NYSE Euronext and any Subsidiary or transactions between Subsidiaries;
(vi) neither NYSE Euronext nor any of its Subsidiaries shall acquire or agree to acquire (whether by merger, consolidation, purchase or otherwise) any Person or assets, in which the expected gross expenditures and commitments (including the amount of any indebtedness assumed) (A) for all such acquisitions exceeds, in the aggregate, $270,000,000 (it being understood that if NYSE Euronext intends to make one or more acquisitions that would exceed such amount, then NYSE Euronext, NASDAQ OMX and ICE will discuss in good faith as to whether to permit such acquisitions based on the best interests of NASDAQ OMX and ICE after the Effective Time), or (B) is reasonably likely, individually or in the aggregate, to materially delay the satisfaction of the conditions set forth in Article V or prevent the satisfaction of such conditions;
(vii) except in the ordinary and usual course of businessbusiness consistent with past practice, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it NYSE Euronext nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(gi) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation if such settlement or compromise would involve, individually or together with all such other settlements or compromises, the payment of money by NYSE Euronext or its Subsidiaries of $70,000,000 or more or would involve any admission of material wrongdoing or any material conduct requirement or restriction by NYSE Euronext or its Subsidiaries or (ii) modify, amend or terminate or materially amend or modify in any material respect any of its material Material Contracts or waive, release or assign any material rights or claimsclaims thereunder in excess of $70,000,000 individually or in the aggregate;
(hviii) except to the extent otherwise required by Law, neither NYSE Euronext nor any of its Subsidiaries shall make or change any Tax election, change any method of Tax accounting, file any amended Tax Return, or settle or compromise any audit or proceeding relating to Taxes, in each case, if such action would reasonably be expected to have an adverse effect on NYSE Euronext that is material; or permit any material insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated except in the ordinary and usual course of business;
(ix) neither NYSE Euronext nor any of its Subsidiaries shall permit any change in its financial accounting principles, policies or practice (including any of its practices with respect to accounts receivable or accounts payable), except to the extent that any such changes in financial accounting principles, policies or practices shall be required by changes in GAAP;
(x) neither NYSE Euronext nor any of its Subsidiaries shall enter into any “non-compete” or similar Contract that would materially restrict the business of NASDAQ OMX Group or ICE Group following the Effective Time;
(xi) except as permitted pursuant to Section 4.1(a)(iv), neither NYSE Euronext nor any of its Major Subsidiaries shall enter into any Contract between itself, on the one hand, and any of its employees, officers or directors, on the other hand, if such Contract is not entered into on an arm’s length basis; and
(xii) neither NYSE Euronext nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing set forth in Sections 4.1(a)(i) through (xi) if NYSE Euronext would be prohibited by the terms of Sections 4.1(a)(i) through (xi) from doing the foregoing.
(b) Each of NASDAQ OMX and ICE covenants and agrees as to itself and its Subsidiaries that, after the date hereof and until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, unless NYSE Euronext shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement or except as otherwise set forth in Section 4.1 of the NASDAQ OMX Disclosure Letter or Section 4.1 of the ICE Disclosure Letter, as the case may be:
(i) (A) it shall not amend its certificate of incorporation or bylaws in a manner adverse to the stockholders of NYSE Euronext as opposed to any other holders of its common stock; (B) it shall not split, combine or reclassify its outstanding shares of capital stock; (C) it shall not declare, set aside or pay any type of dividend, whether payable in cash, stock or property, in respect of any capital stock; and (D) it shall not repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any interests or shares of its capital stock, as applicable, or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(ii) it shall not issue, sell, dispose of or grant, or authorize the issuance, sale, disposition or grant of, any shares of any class of its capital stock except (A) for fair market value or (B) upon the vesting of restricted stock units or the exercise of options, warrants, convertible securities or other rights of any kind to acquire any of its capital stock which were issued with an exercise or conversion price of not less than the market price at the time of issuance; provided, however, that the foregoing shall not prohibit issuances of common stock, restricted stock units, options or rights as part of normal employee compensation in the ordinary course of business; provided, further, that this subsection (B) shall not prohibit the issuance of capital stock, restricted stock units, options, warrants, convertible securities or other rights in connection with any equity financing contemplated by NASDAQ OMX or ICE, as applicable, in connection with the transactions contemplated by this Agreement;
(iii) neither it nor any of its Subsidiaries shall make acquire or agree to acquire (whether by merger, consolidation, purchase or otherwise) any Tax election Person or permit assets, in which the expected gross expenditures and commitments (including the amount of any insurance policy naming it as a beneficiary indebtedness assumed) is reasonably likely, individually or loss- payable payee in the aggregate, to be canceled materially delay the satisfaction of the conditions set forth in Article V or terminatedprevent the satisfaction of such conditions;
(iiv) neither it nor shall not fail to make in a timely manner any filings with the SEC required under the Securities Act of its Subsidiaries shall take any action 1933, as amended (including the rules and regulations promulgated thereunder, the “Securities Act”) or omit to take any action that would cause any the Securities Exchange Act of its representations 1934, as amended (including the rules promulgated thereunder, the “Exchange Act”) or the rules and warranties herein to become untrue in any material respectregulations promulgated thereunder; and
(jv) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing set forth in Section 4.1(b)(i) through (iv) if it would be prohibited by the terms of Section 4.1(b)(i) through (iv) from doing the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Nasdaq Omx Group, Inc.), Merger Agreement (Intercontinentalexchange Inc)
Interim Operations. The Company Each of Grace and Fresenius AG (for itself and on behalf of Fresenius AG) covenants and agrees as to itself ------------------ and its Subsidiaries subsidiaries that, from and after the date hereof and prior to until the Effective Time (unless Parent Time, except insofar as the other parties shall otherwise approve in writing, which approval shall not be unreasonably withheld consent or delayed, and except as otherwise expressly contemplated by this Agreement, the Contribution Agreement, the Distribution Agreement or its Disclosure Letter (provided that, as used herein, all references to Grace (and/or its Affiliates) shall be deemed to refer to Grace and its Affiliates which conduct the NMC Business, consistent with Section 9.8 hereof, except as otherwise specifically provided):
(a) To the extent reasonably practicable, taking into account any operational matters that may arise that are primarily attributable to the pendency of the Reorganization, the business of it and its Subsidiaries shall subsidiaries will be conducted only in the ordinary and usual course consistent with past practices practice and existing business plans previously disclosed to the other parties and, to the extent consistent therewith, it and its Subsidiaries shall subsidiaries will use commercially all reasonable efforts to preserve its their business organization intact and maintain its their existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;.
(b) it shall not, It will not (i) issue, sell or otherwise dispose of pledge or subject agree to Lien (other than Permitted Liens) sell or pledge any stock owned by it in any of its Subsidiaries' Capital Stock owned by itsubsidiaries or, in the case of Fresenius AG, any FWD Business Subsidiary; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay Certificate of Incorporation or make more costly to Parent the Offer By-laws (or the Mergersimilar organizational document); (iii) split, combine or reclassify its any outstanding shares of Capital Stockcapital stock; or (iv) declare, set aside or pay any dividend payable in cash, stock or property in with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit to any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;capital stock.
(c) neither it Neither Grace, Fresenius USA, nor any of its Subsidiaries shall (i) authorize for issuance or their respective subsidiaries or, Fresenius AG, solely with respect to any FWD Business Subsidiary, will issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares common shares issuable pursuant to Company Options options, warrants and other convertible securities outstanding on the date hereof); hereof and disclosed in its Disclosure Letter, and employee stock options granted after the date hereof in the ordinary course of business.
(iid) None of Grace, Fresenius USA or Fresenius AG, with respect to the FWD Business, will (i) transfer, lease, license, guarantee, sell, mortgage, pledge or dispose of any property or assets encumber any property or assets other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell business; (ii) authorize or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)make capital expenditures; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets assets, stock or stock other securities of any other Person;person or entity other than its wholly owned subsidiaries or (iv) make any divestiture.
(de) except Except as may be required to comply with applicable law by agreements or by existing contractual commitmentsarrangements disclosed in its SEC Documents or its Disclosure Letter, neither it nor any of its Subsidiaries shall (i) enter into subsidiaries or, in the case of Fresenius AG, any new agreements or commitments for FWD Business Subsidiary, will grant any severance or termination pay to, or enter into into, extend or amend any employment employment, consulting, severance or severance other compensation agreement with, any director, officer or other of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed except to Parent and (b) reasonable severance payments made to other employees in the ordinary course of business and in a manner consistent with past practicespractice, which would bind Newco (or its subsidiary) after the Reorganization.
(iif) terminateExcept as may be required to satisfy contractual obligations existing as of the date hereof (and disclosed to the other parties hereto) and the requirements of applicable law, and except in the ordinary course of business, neither it nor any of its subsidiaries or, in the case of Fresenius AG, any FWD Business Subsidiary, will establish, adopt, enter into, make any new grants or awards undermake, amend or otherwise modifymake any elections under any collective bargaining, any Compensation and Benefit Plan or increase or accelerate the salarybonus, wageprofit sharing, bonus thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other compensation plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees which would affect Newco (or directors its subsidiary), except in a manner consistent with past practice.
(except for increases occurring g) It will not implement any change in its accounting principles, practices or methods, other than as may be required by German GAAP, in the ordinary case of Fresenius AG, or US GAAP, in the case of Grace and usual course of businessFresenius USA, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) other than as may be necessary or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;advisable in connection with the Distribution.
(eh) neither Neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries subsidiaries will authorize or enter into any an agreement to do take any of the foregoingactions referred to in paragraphs (a) through (g) above.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Grace W R & Co /Ny/), Agreement and Plan of Reorganization (Fresenius Aktiengesellschaft)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve consent in writing, which approval consent shall not unreasonably be unreasonably withheld or delayed, and except as otherwise expressly set forth in or contemplated by this AgreementAgreement or described on Section 7.1 of the Company Disclosure Schedule):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, strategic partners, creditors, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby-laws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchasepurchase, redeem or otherwise acquire acquire, except for the acquisition of shares of Company Common Stock from holders of Company Stock Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Stock Options to the extent required or permitted under the terms of such Company Stock Options, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or authorize, issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind (including but not limited to any “rights or poison pill” agreement) to acquire, any shares of its Capital Stock capital stock of any class class, or any Voting Debt or any other property or assets (other than Shares shares of Company Common Stock and associated rights issuable pursuant to Company Options options and other stock-based awards outstanding on the date hereofhereof under the Company Stock Plans); or (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell sell, mortgage, pledge, dispose of, abandon, cancel, surrender or otherwise dispose of allow to lapse or subject to expire or encumber any Lien (other than Permitted Liens) any other material property or material assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (business, except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except such transactions conducted in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of or any Subsidiaries’ business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or otherwise enter into any new agreements agreement or commitments arrangement imposing material changes or restrictions on the operation of its assets or businesses or adopt resolutions providing for any severance or termination pay to, or enter into any employment or severance agreement with, authorizing any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planforegoing;
(e) neither it nor any of its Subsidiaries shallshall acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, or (ii) any assets that are material, individually or in the aggregate, to the Company and any of its Subsidiaries, taken as a whole, except purchases of inventory and raw materials in the ordinary course of business (or as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used permitted by itSection 7.1(g));
(f) neither it nor any of its Subsidiaries shall revalue in (i) incur any respect indebtedness for borrowed money or guarantee any such indebtedness of another Person, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its material assetsSubsidiaries, including writing down 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 value economic effect of inventory any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of the Company and its Subsidiaries in the ordinary course of business) or writing-off notes capital contributions to, or accounts receivableinvestment in, any other Person, other than the Company or any of its direct or indirect wholly owned Subsidiaries, or (iv) other than in the ordinary course of business consistent with past practicesbusiness, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company or its Subsidiaries against fluctuations in commodities prices or exchange rates;
(g) neither it nor any of its Subsidiaries shall settle make any capital expenditures or compromise any material claims other expenditures with respect to property, plant or litigation or terminate or materially amend or modify any equipment in excess of $500,000 in the aggregate for the Company and its material Contracts or waiveSubsidiaries, release or assign any material rights or claimstaken as a whole;
(h) neither it nor any of its Subsidiaries shall make any material changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or applicable Law or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(i) neither it nor any of its Subsidiaries shall, except in the ordinary course of business consistent with past practice, enter into, renew, modify, amend, terminate, waive, delay the exercise of, release or assign any material rights or claims under, any Company Material Contract or Company Lease; provided, that, nothing herein shall permit the Company or any of its Subsidiaries to (i) enter into any Contract of the type specified in Section 5.5(a)(iii) to the extent such Contract would survive after the Effective Time or modify or amend in a manner adverse to the Company or any of its Subsidiaries any existing Contract of the type specified in Section 5.5(a)(iii) or (ii) except to the extent permitted by Section 7.2(a) of this Agreement, enter into, renew, modify, amend, terminate, waive, delay the exercise of, or release or assign any material rights or claims under, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is bound by or subject;
(j) neither it nor any of its Subsidiaries shall, except as required to comply with applicable Law, any express provision of this Agreement, or agreements, plans or arrangements existing on the date hereof, (i) take any action with respect to, adopt, enter into, terminate or amend any employment, severance, change in control, retirement, retention, welfare, incentive or similar agreement, arrangement or benefit plan for the benefit or welfare of any current or former director, officer, employee or consultant or any collective bargaining agreement, (ii) increase in any respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, employee or consultant (except for annual increases of salaries of Persons who are not officers in the ordinary course of business that do not exceed 3.5%), (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (iv) pay any benefit not provided for as of the date of this Agreement under any Company Benefit Plan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder;
(k) neither it nor any of its Subsidiaries shall initiate, settle or compromise any litigation, claim, grievance, charge or proceeding involving any Intellectual Property or any matters reported as “Legal Proceedings” in any Company SEC Reports, or any other material litigation, claim, grievance, charge or proceeding (other than in connection with the enforcement of the Company’s rights under this Agreement);
(l) neither it nor any of its Subsidiaries shall make or rescind any material Tax election election, amend any material Tax Return or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated in each case except in a manner consistent with past practice or as required by applicable Law;
(im) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause is reasonably likely to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respectArticle VIII not being satisfied; and
(jn) neither it nor any of its Subsidiaries will authorize any of, or enter into any agreement commit, resolve or agree, in writing or otherwise, to do take, any of the foregoingforegoing actions; provided, however, that nothing contained in this Agreement shall give to Parent, directly or indirectly, rights to control or direct the operations of the Company prior to Closing. Prior to Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its and its Subsidiaries’ operations.
Appears in 2 contracts
Sources: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
Interim Operations. The Except as set forth in Section 6.1 of the Company Disclosure Letter, the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or the Stock Option Agreement):
(a) the business of it its and its Subsidiaries Subsidiaries' businesses shall be conducted only in the ordinary and usual course consistent with past practices and(it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, product extension or otherwise) the business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or to enter into or engage in new lines of business (as such term is defined in the National Association of Insurance Commissioner's instructions for the preparation of the annual statement form) without Parent's prior written approval);
(b) to the extent consistent therewithwith (a) above, it and each of its Subsidiaries shall use commercially its respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, reinsurers, distributors, creditors, lessors, employees and business associates;
(bc) it shall not, not (i) issueamend any Governing Document or amend, sell modify or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itterminate the Rights Agreement; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iviii) authorize, declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its wholly owned Subsidiaries and other than regular quarterly dividends paid by the Company on its Common Shares not in excess of $0.18 per share, with usual record and payment dates and in accordance with the Company's past dividend policy; or (viv) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentstock;
(cd) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquireacquire any shares, any shares of its Capital Stock or any Subsidiary's capital stock of any class or any Voting Debt other property or assets (other than Common Shares issuable pursuant to Company Options options outstanding on the date hereofhereof under any of the Company Stock Plans); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; or (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwiseexcept as set forth in Section 6.1(d) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments forDisclosure Letter, make or authorize or commit for any capital expenditures expenditures, including entering into capital lease obligations, other than in amounts less than not exceeding $50,000 individually and $250,000 1,000,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity, including by way of assumption reinsurance, in excess of $1,000,000 individually or $5,000,000 in the aggregate (other than in connection with ordinary course investment activities);
(de) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans including the Stay Bonus Plan, or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay promote any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor into any of its Subsidiaries shallbands 1, except as may be required as a result 2, 3 or 4, or from one of a change in law or in GAAP, change any such bands into another of the accounting principles or practices used by itsuch bands;
(f) neither it nor any of its Subsidiaries shall revalue in pay, discharge, settle or satisfy any respect any of its material assetsclaims, including writing down the value of inventory liabilities or writing-off notes obligations (absolute, accrued, asserted or accounts receivableunasserted, contingent or otherwise), other than the payment, settlement, discharge or satisfaction of claims, liabilities or obligations legally due and payable and arising in the ordinary and usual course of business, claims arising under the terms of products, contracts or policies issued by the Company Insurance Subsidiaries in the ordinary and usual course of business consistent with past practicesand such other claims, liabilities or obligations as shall not, subject to Section 5.1(a) of the Company Disclosure Letter, exceed $2,000,000 in the aggregate;
(g) neither it nor any of its Subsidiaries shall make, change or revoke any material Tax election, settle or compromise any material claims Tax liability arising in any audit, change its method of accounting if such change would have a material impact on Taxes, enter into any closing or litigation other agreement with respect to a material amount of Taxes, file a request for refund of a material amount of Taxes (but not including the prosecution of any refund claim pending on the date hereof), or terminate file an amended Tax Return if such Tax Return is materially different from the original return to which it relates, except, in each case, (i) in the ordinary course of business and consistent with the Company's past practice in respect of the Tax at issue in the jurisdiction in question or materially amend or modify any (ii) with the consent of its material Contracts or waiveParent, release or assign any material rights or claimssuch consent not to be unreasonably withheld;
(h) neither it nor any of its Subsidiaries shall make enter into any Tax election agreement containing any provision or permit covenant limiting in any insurance policy naming it as a beneficiary material respect the ability of the Company or loss- payable payee any Subsidiary or affiliate to be canceled (i) sell any products or terminatedservices of or to any other Person, (ii) engage in any line of business or (iii) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries or Affiliates;
(i) neither it nor any of its Subsidiaries shall enter into any (A) commutations or (B) new quota share or other reinsurance transaction, in the case of clause (B), (i) which does not contain cancellation and termination provisions reasonably customary in the industry for that type of transaction, (ii) which, except in the ordinary course of business, materially increases or reduces the Company Insurance Subsidiaries' consolidated ratio of net written premiums to gross written premiums or (iii) except as set forth in Section 6.1(i) of the Company Disclosure Letter, pursuant to which $5,000,000 or more in gross written premiums are ceded by the Company Insurance Subsidiaries to any Person other than the Company or any of its Subsidiaries;
(j) neither it nor any of the Company Insurance Subsidiaries will alter or amend in any material respect their existing investment guidelines or policies;
(k) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect;
(l) neither it nor its Subsidiaries shall permit a material change in any of its underwriting, investment, actuarial, financial reporting or accounting practices or policies or in any material assumption underlying an actuarial practice or policy, except as may be required by any change in GAAP, statutory accounting principles or applicable Law; and
(jm) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Orion Capital Corp), Merger Agreement (Royal Group Inc/)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing) and except as required by applicable Laws or as provided for in this Agreement, which each of the Company and its Subsidiaries shall conduct its business in the ordinary course consistent with past practice and it shall use reasonable efforts to preserve intact its business organization and relationships with third parties and keep available the services of its present officers and employees. Without limiting the generality of the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval shall not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and except as otherwise expressly contemplated by this Agreement):will not permit its Subsidiaries to:
(a) the business adopt or propose any change in its articles of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesincorporation or bylaws or other applicable governing instruments;
(b) it shall not, (i) issue, sell merge or otherwise dispose of consolidate the Company or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise acquireenter into any agreements or arrangements imposing material changes or restrictions on its assets, any shares of its Capital Stock operations or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentbusinesses;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in accordance with benefits outstanding prior to the ordinary and usual course of business consistent with past practicesdate hereof under the Company Stock Plans, issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guaranteeguarantee or encumbrance of, sell any shares of capital stock of the Company or otherwise dispose any its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness options, warrants or other liability rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(except for additional borrowings in the ordinary course under lines of credit d) materially and adversely modify, terminate or renew any Material Contract or any Contract that would be a Material Contract if in existence on the date hereof, (i) except in the ordinary course of business, or (ii) if consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any encumbrance in or upon any of the properties or assets of any Company or Parent or any of its Subsidiaries under such Contract; provided, however, that the foregoing shall not prohibit entering into, modifying or renewing the Contracts in the ordinary course of business to the extent such Contracts can be terminated after any such entering into, modification or renewal at a cost of less than $200,000;
(e) except pursuant to Contracts in effect prior to the date of this Agreement, create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Company or any of its Subsidiaries having a value in excess of $50,000;
(f) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $50,000 in the aggregate;
(g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or the capital stock of its Subsidiaries (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of such capital stock;
(h) other than as required by Section 5.1(r); (iii) assume, guaranteereclassify, endorse split, combine, subdivide or redeem, purchase or otherwise become liable acquire, directly or responsible indirectly, any of its, or its Subsidiaries, capital stock or securities convertible or exchangeable into or exercisable for any shares of such capital stock, except in accordance with cashless exercise provisions of rights granted prior to the date hereof under the Company Stock Plans;
(whether directlyi) except under credit facilities set forth in Section 5.1(j)(i)(D) of the Company Disclosure Letter, contingently incur any indebtedness for borrowed money or otherwise) guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for the obligations of any other Person except indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices and except (i) not to exceed $200,000 in the aggregate, (ii) in replacement of existing indebtedness for obligations borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, (iii) guarantees incurred in compliance with this Section 6.1 by the Company of indebtedness of wholly-owned Subsidiaries of the Company incurred or (iv) interest rate swaps on customary commercial terms consistent with past practice and not to exceed $250,000 of notional debt in the aggregate;
(j) except as set forth in the capital budgets set forth in Section 6.1(j) of the Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $200,000 in the aggregate during any 12 month period;
(k) make any changes with respect to accounting policies or procedures, except as required to comply with, or to comply with changes in, GAAP;
(l) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $200,000 or any obligation or liability of the Company in excess of such amount;
(m) make, adopt or change any material Tax election or Tax accounting method, or fail to timely (taking into account all applicable extensions) file all Tax Returns required to be filed, and pay all Taxes required to be paid, on or before the Closing Date;
(n) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except for sales or rental of inventory in the ordinary course of business; (iv) make any loans to any , sales of obsolete assets and sales, leases, licenses or other Person (dispositions of assets with a fair market value not in excess of $250,000 in the aggregate, other than pursuant to Subsidiaries Contracts in effect prior to the date of this Agreement;
(o) except as required pursuant to existing written, binding agreements or policies in effect prior to the date of this Agreement and set forth in Section 5.1(h) of the Company orDisclosure Letter, customary loans or advances as otherwise required by applicable Law, (i) grant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or employee of the Company or any of its Subsidiaries, except, in the case of employees in connection with business-related travel who are not officers, in the ordinary course of business consistent with past practices); or practice , (viii) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, terminate any Compensation and Benefit Plan or increase or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the salaryvesting or payment, wageor fund or in any other way secure the payment, bonus of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) change any actuarial or other compensation of assumptions used to calculate funding obligations with respect to any employees Benefit Plan or directors (except for increases occurring to change the manner in which contributions to such plans are made or the ordinary and usual course of business, basis on which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shallsuch contributions are determined, except as may be required as a result by GAAP; or (vi) forgive any loans to directors, officers or employees of a change in law the Company or in GAAP, change any of the accounting principles or practices used by itits Subsidiaries;
(fp) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause is reasonably likely to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respect; andArticle VII not being satisfied;
(jq) neither it nor take any action that would violate the CIA;
(r) knowingly take or permit any of its Subsidiaries will to take any action that is reasonably likely to prevent the consummation of the Merger; or
(s) agree, authorize or enter into any agreement commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies Inc)
Interim Operations. The Company covenants and agrees Except as to itself ------------------ and its Subsidiaries thatset forth in the ▇▇▇▇▇▇▇ Disclosure Letter, after in the date hereof and case of ▇▇▇▇▇▇▇, the Cardiac Disclosure Letter, in the case of Cardiac, or as otherwise expressly contemplated hereby, without the prior to consent of the Effective Time other party (unless Parent shall otherwise approve in writing, which approval consent shall not be unreasonably withheld or delayed), from the date hereof until the Effective Time, ▇▇▇▇▇▇▇ and Cardiac shall, and shall cause each of their respective Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) maintain in effect all material licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required by applicable Laws for the operation of its business and (iii) preserve existing relationships with its key employees, its key agents, and its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in the ▇▇▇▇▇▇▇ Disclosure Letter, in the case of ▇▇▇▇▇▇▇, or the Cardiac Disclosure Letter, in the case of Cardiac, or as otherwise expressly contemplated by this Agreement):, from the date hereof until the Effective Time, without the prior consent of the other party, neither ▇▇▇▇▇▇▇ nor Cardiac shall, nor shall either permit any of its Subsidiaries to:
(a) the business amend its certificate of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesincorporation or bylaws (or similar governing documents);
(b) take any action that would prevent or materially impair the ability of it shall notto consummate the transactions contemplated by this Agreement, including actions that would be reasonably likely to prevent or materially impair its ability to obtain any consent, registration, approval, permit or authorization required to be obtained from any Governmental Entity prior to the Effective Time in connection with the execution and delivery of this Agreement and the consummation of the Mergers and the other transactions contemplated by this Agreement;
(i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iiic) split, combine or reclassify its outstanding any shares of Capital Stock; (iv) its capital stock or any of its Subsidiaries which are not wholly-owned or declare, set aside or pay any dividend payable or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or any Capital Stock; (v) repurchasesecurities of any of its Subsidiaries which are not wholly-owned, redeem or redeem, repurchase or otherwise acquire or permit offer to redeem, repurchase, or otherwise acquire any of its securities or any securities of any of its Subsidiaries to purchase which are not wholly-owned;
(d) issue, deliver or otherwise acquiresell, or authorize the issuance, delivery or sale of, any shares of its Capital Stock capital stock of any class or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or optionsany rights, warrants, calls, commitments warrants or rights of any kind options to acquire, any shares of its Capital Stock of any class such capital stock or any Voting Debt (such convertible securities, other than (A) the issuance of ▇▇▇▇▇▇▇ Common Shares issuable pursuant to Company Options or Cardiac Common Shares, as the case may be, upon the exercise of stock options outstanding on the date hereof), (B) the issuance of stock options in the ordinary course of business to purchase up to 75,000 ▇▇▇▇▇▇▇ Common Shares or 350,000 Cardiac Common Shares, as the case may be, pursuant to the ▇▇▇▇▇▇▇ Stock Plans or Cardiac Stock Plan, as the case may be, in accordance with their present terms except that no such stock options shall be issued to any executive officer of ▇▇▇▇▇▇▇ or Cardiac; and (C) the issuance of ▇▇▇▇▇▇▇ Common Shares pursuant to the ▇▇▇▇▇▇▇ ESPP;
(e) other than expenses incurred in connection with this transaction such as reasonable legal and accounting expenses, and investment banking expenses, incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by its capital expenditure budget, (ii) other than incurred in the ordinary and usual course of business, or (iii) not otherwise described in clauses (i) and/or (ii) which are not in excess of an aggregate of $100,000;
(f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions any assets of or equity interests in any Person;
(g) sell, lease, license, encumber or otherwise dispose of any assets (including, without limitation, intellectual property rights), other than (i) in the ordinary course of business consistent with past practicespractice, transfer(ii) equipment and property no longer used in the operation of its business, leaseand (iii) sales or other dispositions of assets related to discontinued operations;
(h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others or request any advances in respect of, licenseor make any drawdowns on, guaranteeany existing indebtedness which advance or drawdown (together with other advances or drawdowns made after the date of this Agreement) exceeds $100,000 in the aggregate;
(i) enter into, sell amend, modify or terminate any material contract, agreement or arrangement or otherwise dispose of waive, release or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify assign any material indebtedness rights, claims or other liability (benefits thereunder, except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); business;
(iiii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and practice, or as required by Law or by an agreement existing on the date hereof, increase the amount of compensation of any director or executive officer or make any increase in or commitment to increase any employee benefits, (ii) except for obligations of Subsidiaries of as required by Law or by an agreement existing on the Company incurred date hereof, adopt any severance program or grant any material severance or termination pay to any director, officer or employee, (iii) adopt or implement any employee retention program or other incentive arrangement not in existence on the date hereof or amend in any material respect such program or arrangement, (iv) adopt any additional employee benefit plan or, except in the ordinary course of business; (iv) , make any loans material contribution to any other Person existing plan (other than to Subsidiaries of the Company oras required by Law or such plan), customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required by Law or pursuant to comply with applicable law or by any agreement existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of on the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards underdate hereof, amend or otherwise modify, in any Compensation and Benefit material respect any ▇▇▇▇▇▇▇ Employee Plan or increase or accelerate Cardiac Employee Plan, as the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plancase may be;
(ek) neither it nor any change its (x) methods of its Subsidiaries shallaccounting in effect at December 31, 2004, except as may be required as a result of a change by changes in law GAAP or in GAAP, change any by Regulation S-X of the accounting principles Exchange Act, as concurred in by its independent public accountants or practices used by it(y) fiscal year;
(fl) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waivepractice, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit enter into any insurance policy naming it as a beneficiary settlement or loss- payable payee compromise of any Tax liability that in either case is material to be canceled or terminatedits business;
(im) neither it nor pay, discharge, settle or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) other than (y) for an amount of $100,000 or less, or (z) ordinary course repayment of indebtedness or payment of contractual obligations when due;
(n) commence any Action other than in accordance with past practice, or settle or propose to settle, any Action for material money damages or restrictions upon its Subsidiaries shall take any action or omit to operations;
(o) take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jp) neither it nor any of its Subsidiaries will authorize agree, resolve or enter into any agreement otherwise commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Cardiac Science Inc), Merger Agreement (Quinton Cardiology Systems Inc)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writingapprove, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries other than sales, dispositions or transfers of such capital stock between the Company and/or its Subsidiaries' Capital Stock owned by it; (iiB) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby-laws; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends not in excess of $.04 per Share; or (vE) repurchase, redeem or otherwise acquire acquire, except in connection with the Stock Plan (including any Tax withholding in connection with awards under the Stock Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options options outstanding on the date hereof); (iihereof under the Stock Plan or Shares issuable under the Compensation and Benefit Plans) or, other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Personand;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (American General Corp /Tx/), Merger Agreement (Western National Corp)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent SBC shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or the Stock Option Agreement, in the Company Disclosure Letter or as required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its chartercertificate of incorporation or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock, other than per share regular quarterly cash dividends not in excess of $0.44 per Company Share; or (vD) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries (other than the Company's Employee Stock Ownership Plan) to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iknowingly take any action that would prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a tax-free "reorganization" within the meaning of Section 368(a) authorize for issuance of the Code or issue, sell or otherwise dispose of or subject to that would cause any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant representations and warranties herein to Company Options outstanding on the date hereof); (ii) other than become untrue in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; respect;
(iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or employees except (A) for grants or directors awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (except for increases occurring B) in the ordinary normal and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing increases and the provision of individual Compensation and Benefit PlanPlans consistent with past practice for promoted or newly hired officers and employees and the adoption of Compensation and Benefit Plans for employees of new Subsidiaries in amounts and on terms consistent with past practice) or (C) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date hereof;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(fv) neither it nor any of its Subsidiaries shall revalue in issue any respect preferred stock or incur any indebtedness for borrowed money (other than indebtedness incurred solely for the purpose of funding the Escrow Account or the replacement or refinancing of existing short-term indebtedness) or guarantee any such indebtedness if the Company should reasonably anticipate that as a result of such incurrence any of the Company's or any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other Subsidiaries' outstanding senior indebtedness would be rated lower than in the ordinary course of business consistent with past practicesA by Standard & Poor's;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any Tax election or permit capital expenditures in any insurance policy naming it as calendar year in an aggregate amount in excess of the aggregate amount reflected in the Company's capital expenditure budget for such year, a beneficiary or loss- payable payee copy of which has been provided to be canceled or terminatedSBC, plus $100 million;
(ivii) except as contemplated by Section 6.1(a)(iv), neither the Company nor any of its Subsidiaries shall issue, deliver, sell, or encumber shares of any class of its common stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares except the option granted under the Stock Option Agreement, options outstanding on the date hereof under the Stock Plans, awards of options and restricted stock granted hereafter under the Stock Plans in the ordinary course of business in accordance with this Agreement and shares issuable pursuant to such options and awards;
(viii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any spend in excess of its representations and warranties herein to become untrue $50 million in any material respectcalendar year to acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition). For purposes of this clause (viii), the amount spent with respect to any acquisition shall be deemed to include the aggregate amount of capital expenditures that the Company is obligated to make at any time or plans to make as result of such acquisition within two years after the date of acquisition; and
(jix) neither it nor any of its Subsidiaries will authorize shall enter any business other than the telecommunications business and those businesses traditionally associated with the telecommunications business or enter into or extend any agreement to do any telecommunications business outside the geographic areas served by it and its Subsidiaries as of the foregoing.date of this Agreement; and
Appears in 2 contracts
Sources: Merger Agreement (SBC Communications Inc), Merger Agreement (SBC Communications Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after Between the date hereof of this Agreement and prior to the Effective Time (unless Parent shall otherwise approve in writingClosing Date or the earlier termination of this Agreement, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly set forth on Schedule 7.1 or as contemplated by this Agreement):
(a) , unless Buyer has previously consented in writing or as required by applicable Law, the business of it Acquired Companies will, and its Subsidiaries shall be conducted in TAT and Sellers will cause the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall notAcquired Companies to, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except conduct their operations in the ordinary course of business consistent with past practices practice, (ii) use commercially reasonable efforts to preserve (A) present business operations, organization (including employees, but specifically excluding officers and directors) and goodwill and (B) present relationships with suppliers and customers having business dealings with the Acquired Companies and (iii) maintain all assets and properties of, or used by, the Acquired Companies in their current condition (ordinary wear and tear excepted). Without limiting the foregoing, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, except as set forth on Schedule 7.1 or as contemplated by this Agreement, unless Buyer has previously consented in writing, N. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 3rd or ▇▇▇▇▇▇ ▇▇▇▇▇ has previously directed (within their existing authority) or requested, in each case in writing, or as required by applicable Law, no Acquired Company shall, nor shall TAT or Sellers permit any Acquired Company to, do any of the following:
(a) incur any indebtedness for borrowed money or issue any long-term debt securities or assume, guarantee or endorse such obligations of any other Person, except for obligations of Subsidiaries of the Company indebtedness incurred in the ordinary course of business under lines of credit existing on the date hereof;
(b) except in the ordinary course of business; , (ivi) acquire any material property or assets, (ii) mortgage or encumber any material property or assets other than Permitted Liens, or (iii) cancel any debts owed to or claims held by the Acquired Companies;
(c) other than in the ordinary course of business, enter into, amend, modify or terminate any Material Contract;
(d) (i) enter into, adopt, amend or terminate any agreement relating to the compensation, bonus, benefits provided to or severance of any employee of, or any employee to be transferred at Closing to, any Acquired Company or (ii) terminate without cause the employment of any employee of, or any employee to be transferred at Closing to, any Acquired Company, in each case other than in the ordinary course of business, except to the extent required by Law or any existing agreements;
(e) make any loans material change to the Acquired Companies’ accounting (including Tax accounting) methods, principles or practices, except as may be required by GAAP or changes in Law;
(f) make any amendment to any Acquired Company’s Organizational Documents;
(g) issue or sell any capital stock or options, other Person equity securities, warrants, calls, subscriptions or other rights to purchase any capital stock or other equity securities of any Acquired Company of any of its Subsidiaries or split, combine or subdivide the capital stock or other equity securities of an Acquired Company or any of its Subsidiaries;
(other than h) (i) make, change or revoke any material Tax election, settle or compromise any material Tax claim or liability or enter into a settlement or compromise, or change (or make a request to Subsidiaries any taxing authority to change) any material aspect of its method of accounting for Tax purposes, in each case with respect an Acquired Company, (ii) enter into any material closing agreement, or consent to any extension or waiver of the statutory period of limitations applicable to any claim or assessment in respect of Taxes or (iii) prepare or file any Tax Return related an Acquired Company (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and Sellers shall have provided Buyer a copy thereof (together with supporting papers) at least ten Business days prior to the due date thereof for Buyer to review and approve (such approval not to be unreasonably withheld or delayed);
(i) take any action which would materially and adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; or
(j) agree to take any of the actions described in sub-clauses (a) through (i) above. Nothing contained in this Section 7.1 or elsewhere in this Agreement shall preclude any Acquired Company, customary loans in the Acquired Company’s sole discretion, from making distributions to its equity holder(s) prior to the Effective Date, and from and after the Effective Date, no Acquired Company shall make any distributions of cash or advances other assets to employees in connection with business-its equity holder(s) but shall not be prohibited from making cash management transfers related travel to expenses of the Acquired Companies paid directly by TAT or any Seller in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Transatlantic Petroleum Ltd.), Stock Purchase Agreement (Transatlantic Petroleum Ltd.)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, writing (which approval shall not be unreasonably withheld or delayed, ) and except as otherwise expressly contemplated by this AgreementAgreement or as set forth in Section 6.1 of the Company Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andpractice, to the extent consistent therewith, and it and its Subsidiaries shall use their respective commercially reasonable efforts to (i) preserve its present business organization intact and substantially intact, (ii) maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees employees, business associates and other third parties with which the Company has material business associatesrelations consistent with past practice, (iii) keep available the services of its current officers and key employees, and (iv) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including without limitation, all material licenses and permits that are required for the Company or any of its Subsidiaries to carry on its business;
(b) it shall not, and shall not permit any of its Subsidiaries to, and shall not commit to, (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for certificate of incorporation or by-laws or term of any amendment which will not hinder, delay outstanding security of the Company or make more costly to Parent the Offer or the Mergerits Subsidiaries; (iii) split, combine or reclassify its outstanding any shares of Capital Stockcapital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock, of the Company or any less-than-wholly-owned Subsidiary of the Company; (iv) declare, set aside or pay any dividend payable in cash, stock or property or make any other actual, constructive or deemed distribution (whether in cash, stock or property or any combination thereof) in respect of any Capital Stockcapital stock, other than dividends by a direct or indirect wholly-owned Subsidiary of the Company to its parent; or (v) repurchasepurchase, redeem or otherwise acquire acquire, or modify or amend, or offer to redeem, purchase or otherwise acquire, or modify or amend, any Company equity or equity related securities or any equity or equity related securities of any of the Company’s Subsidiaries;
(c) it shall not, and shall not permit any of its Subsidiaries to purchase to, and shall not commit to, offer, issue or otherwise acquiresell, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt class, except that the Company may (other than i) issue up to 20,000 Shares issuable pursuant to the Company’s Amended and Restated Employee Qualified Stock Purchase Plan dated November 13, 1998, (ii) issue Shares upon exercise of Company Options outstanding on the date hereof); hereof or hereafter granted in accordance with the provisions of subclause (iiiii) of this clause (c) or pursuant to the Company Warrants, or (iii) grant Company Options to purchase up to an aggregate of 57,500 Shares to non-employee directors for their attendance at board meetings, in accordance with the terms of the Directors Plan as in effect on the date hereof and consistent with past practice and with an exercise price per Share no less than the fair market value of a Share as of the date of grant;
(d) it shall not, and shall not permit any of its Subsidiaries to, and shall not commit to, (i) other than in the ordinary and usual course of business consistent with past practicespractice, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to encumber any Lien (other than Permitted Liens) any other material property or assets (including capital stock of Subsidiaries of the Company); (ii) without prior written notice to Parent, make, authorize or incur commit or modify agree to make any material indebtedness capital expenditures or any obligations or liabilities in respect thereof, except for those which do not exceed $10,000; (iii) make, authorize or commit or agree to make any capital expenditures or any obligations or liabilities in respect thereof, except for those which do not exceed $25,000; (iv) acquire or propose to acquire (whether by merger, consolidation, purchase of equity or assets or otherwise) any assets or stock of or other liability (interest in any other Person or entity, except in connection with capital expenditures permitted hereunder and except for additional borrowings acquisitions of inventory and other assets in the ordinary course under lines of credit in existence on the date hereof)business; (iiiv) assumemake any loans, guaranteeadvances or capital contributions to, endorse or otherwise become liable or responsible (whether directlyinvestments in, contingently or otherwise) for the obligations of any other Person except (other than loans (not prohibited under Section 13(k) of the Exchange Act) to employees in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries practice not to exceed $5,000 to any individual or $50,000 in the aggregate) or investments by the Company or a wholly-owned Subsidiary of the Company incurred to or in the ordinary course Company or any wholly-owned Subsidiary of business; the Company, or incur (ivincluding by drawing upon the Company’s existing line of credit) make or adversely modify any loans 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 other Person (other than to Subsidiaries debt securities of the Company oror any of its Subsidiaries, customary loans guarantee any debt securities of another Person, enter into any agreement to maintain any financial statement condition of another Person or advances enter into any arrangement having the economic effect of any of the foregoing (or incur or modify any other material liability), (vi) terminate, cancel or request any adverse change in, or agree to employees in connection with business-related travel any adverse change in, any Material Contract to which the Company or any of its Subsidiaries is a party, or waive, release or assign any material rights, claims of benefits of the Company or any of its Subsidiaries thereunder, (vii) other than in the ordinary course of business consistent with past practices); or (v) make practice, enter into any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition ofnew Contract, or investment infail to use reasonable business efforts to renew any Contract, assets to which the Company or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall is a party, which is material to the Company and its Subsidiaries taken as a whole; (iviii) enter into any new agreements non-competition Contracts or commitments for other Contracts that purport to limit in any severance respect either the type of business in which it (or, after giving effect to the Merger, Parent or termination pay toits Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business; (ix) enter into any partnership, joint venture, strategic alliance, revenue or profit sharing agreement or similar arrangement with any Person; or (x) change or modify its line of business from the line of business in which it is engaged as of the date hereof or enter into any employment or severance agreement withnew line of business;
(e) it shall not, and shall not permit any of its directorsSubsidiaries to, officers or employees or consultants except for and shall not commit to, (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation Benefit Plans, except as provided in Section 6.1(c) and Section 6.10(a)(v), (ii) except in the ordinary course of business or as required by Law or the terms of any Benefit Plan Plan, make any contribution to any existing Benefit Plan, (iii) grant any pension, retirement, severance, retention, change of control or termination pay or rights to any director, officer, employee or other service provider of the Company or any of its Subsidiaries, or amend or modify the terms of any Company Option, except as required by Law, (iv) increase or accelerate the salary, wage, bonus or other compensation or benefits of any employees directors, officers or directors (employees, or consultants, except for (A) annual salary increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general acrossto non-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than executive employees made in the ordinary course of business consistent with past practices;practice at the regularly scheduled times; provided that the aggregate dollar amount of such increases shall not exceed the corresponding amount for the calendar year 2003, and (B) subject to Section 6.1(c), the grant of options to non-employee directors of the Company pursuant to the Directors Plan, or (v) make payments or distributions (other than normal salaries) to or enter into any transaction with any affiliate of the Company, (vi) enter into any consulting agreement (A) with any consultant (other than surgeon consultants) providing for payments in excess of $50,000, or (B) with any surgeon consultant regardless of the amount of payments to be made thereunder, (vii) accelerate the payment of compensation or benefits to any director, officer, employee or consultant, except as required by applicable Law, agreements in effect as of the date of this Agreement or Section 6.10(a).
(gf) neither it nor shall not, and shall not permit any of its Subsidiaries to, and shall settle or compromise not commit to, (i) prior to consulting with Parent, commence any material claims or litigation or terminate arbitration proceeding or materially amend any regulatory or modify other governmental action or proceeding with or before any Governmental Entity other than ordinary contract and commercial litigation that the Company does not reasonably expect to result in total costs to the Company in excess of its material Contracts or $300,000, (ii) waive, release or assign any material rights or claims, or (iii) pay, discharge, settle, compromise or satisfy any claims, liabilities or obligations (absolute, accrued, contingent, asserted, unasserted or otherwise), other than the payment, discharge, settlement, compromise or satisfaction, in the ordinary course of business consistent in amount and kind with past practice, of claims, liabilities or obligations reflected in the Company’s most recent financial statements (including the notes thereto) filed with the Company Filed Reports prior to the date hereof or incurred since the date of such financial statements in the ordinary course of business consistent with past practice;
(g) it shall not, and shall not permit any of its Subsidiaries to, and shall not commit to, change its (i) methods or principles of accounting in effect at the Audit Date, except as required by changes in GAAP after the date of this Agreement, as concurred by its independent public accountants, or as required by applicable Law or by a Governmental Entity or (ii) fiscal year;
(h) neither it nor any of and its Subsidiaries shall make use commercially reasonable efforts to keep in place any Tax election or permit any material insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;payee; and
(i) neither it nor shall not, and shall not permit any of its Subsidiaries shall take any action or omit to, agree, authorize, commit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or do, enter into any an agreement to do or publicly announce an intention to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Biomet Inc), Merger Agreement (Interpore International Inc /De/)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time date on which Purchaser's nominees comprise a majority of the Board of Directors of the Company (unless Parent Praxair shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially its reasonable best efforts to preserve its business organization intact and maintain its existing relations rela- tions and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) pledge any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend the Company Charter or its charterby-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockShares or Preferred Shares other than regular quarterly or semi- annual cash dividends not in excess of $0.12 per Share and regular quarterly or semi-annual cash dividends on the Preferred Shares; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or capital stock except in connection with the ordinary course of operations of the CBI Salaried Employee Stock Ownership Plan (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent1987);
(ciii) neither it nor any of its Subsidiaries shall except as disclosed in Section 7.1(a) of the Company Disclosure Letter (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to Company Options options outstanding on the date hereof)hereof under the Stock Plan or upon conversion of Convertible Preferred Shares; (iiB) other than in the ordinary and usual course of business consistent with past practicesbusi- ness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or encumber any property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)liability; or (vC) make any commitments for, make or authorize any capital expenditures other than existing capital expenditures required to be made pursuant to existing capital projects, as set forth in amounts less than $50,000 individually and $250,000 in Section 7.1(a)(iii) of the aggregate Company Disclosure Letter, which have been previously authorized or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity;
(div) except as may be required to comply with applicable law or by existing contractual commitmentsdisclosed in Section 7.1(a) of the Company Disclosure Letter, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than increases in compensation in the ordinary course of business business, in each case, consistent with past practicespractices with regard to frequency and amount;
(gv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminated;
(i) neither it nor any terminated except in the ordinary and usual course of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectbusiness; and
(jvii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Px Acquisition Corp), Merger Agreement (Px Acquisition Corp)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as set forth in Schedule 7.1 hereof or as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable efforts best efforts, consistent with the limitations of this Article VII, to preserve its business organization substantially intact and maintain its existing relations and goodwill with customers, suppliers, distributors, strategic partners, creditors, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby-laws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries; or (v) repurchasepurchase, redeem or otherwise acquire acquire, except for the acquisition of shares of Company Common Stock from holders of Company Stock Options in full or partial payment of the exercise price payable by such holder upon exercise of Company Stock Options to the extent required or permitted under the terms of such Company Stock Options, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares shares of Company Common Stock issuable pursuant to Company Options options outstanding on the date hereofhereof under the Company Stock Plans); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell sell, mortgage, pledge, dispose of, abandon, cancel, surrender or otherwise dispose allow to lapse or expire or encumber any material property or material assets (including capital stock of any of its Subsidiaries) or subject to any Lien (business other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines licenses of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred Products entered into in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or otherwise enter into any new agreements agreement or commitments for any severance arrangement imposing material changes or termination pay torestrictions on the operation of its assets, product lines or businesses, or enter into any employment its interests therein, or severance agreement with, adopt resolutions providing for or authorizing any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planforegoing;
(e) neither it nor any of its Subsidiaries shallshall acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, or (ii) any material assets or businesses, except as may be required as a result purchases of a change inventory and raw materials in law or in GAAP, change any the ordinary course of the accounting principles or practices used by itbusiness;
(f) neither it nor any of its Subsidiaries shall revalue adopt or implement any stockholder rights plan, “poison pill” anti-takeover plan or other similar plan, device or arrangement that, in any respect each case, is applicable to Parent or any of its material assetsAffiliates, including writing down the value Agreement or any of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicestransactions contemplated by this Agreement;
(g) neither it nor any of its Subsidiaries shall settle (i) incur any indebtedness for borrowed money or compromise guarantee any material claims such indebtedness of another Person (other than pursuant to equipment lease borrowings in the ordinary course of business), (ii) issue, sell or litigation amend any debt securities or terminate warrants or materially amend other rights to acquire any debt securities of the Company or modify any of its material Contracts Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or waiveother agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, release (iii) make any loans, advances (other than routine travel advances to employees of the Company and its Subsidiaries in the ordinary course of business, not exceeding $10,000 for any individual employee for any single trip and not exceeding $30,000 in the aggregate) or assign capital contributions to, or investment in, any material rights other Person, other than the Company or claimsany of its direct or indirect wholly owned Subsidiaries, or (iv) other than in the ordinary course of business, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company or its Subsidiaries against fluctuations in commodities prices or exchange rates;
(h) neither it nor any of its Subsidiaries shall make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of $100,000 in the aggregate for the Company and its Subsidiaries, taken as a whole, other than as set forth in the Company’s budget for capital expenditures previously made available to Parent or the specific capital expenditures disclosed in Section 7.1(h) of the Company Disclosure Schedule;
(i) neither it nor any of its Subsidiaries shall make any material changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(j) neither it nor any of its Subsidiaries shall, except in the ordinary course of business consistent with past practice, enter into, renew, modify, amend, terminate, waive, delay the exercise of, release or assign any material rights or claims under, any Company Material Contract; provided, however, that nothing herein shall permit the Company or any of its Subsidiaries to (1) enter into any Contract of the type specified in Section 5.5(a)(iii) or (xiii) (excluding Section 5.5(a)(xiii)(D) solely with respect to Company Products) to the extent such Contract would survive after the Effective Time or modify or amend in a manner adverse to the Company or any of its Subsidiaries any existing Contract of the type specified in Section 5.5(a)(iii) or (xiii), or (2) except to the extent permitted by Section 7.2(a) of this Agreement, enter into, renew, modify, amend, terminate, waive delay the exercise of, or release or assign any material rights or claims under, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is bound by or subject;
(k) neither it nor any of its Subsidiaries shall, except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (i) take any action with respect to, adopt, enter into, terminate or amend any employment (whether at will or otherwise), severance, change in control, retirement, retention, welfare, incentive or similar agreement, arrangement or benefit plan for the benefit or welfare of any current or former director, officer, employee or consultant or any collective bargaining agreement, (ii) increase in any respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (iv) pay any benefit not provided for as of the date of this Agreement under any Company Benefit Plan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder, except for option awards to purchase Company Common Stock that the Company expects to grant to certain new hires in the ordinary course of business as specifically set forth in Section 7.1(k) of the Company Disclosure Schedule which Schedule includes the maximum number of options issuable to such new hires or (vi) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan;
(l) except as otherwise contemplated by this Section 7.1, neither it nor any of its Subsidiaries shall make any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, unless the Company provides Parent with a copy of the intended communication, Parent has a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication;
(m) neither it nor any of its Subsidiaries shall initiate, settle or compromise any material litigation, claim, grievance, charge or proceeding (other than as set forth in Section 7.1(m) of the Company Disclosure Schedule or in connection with the enforcement of the Company’s rights under this Agreement);
(n) neither it nor any of its Subsidiaries shall make or rescind any Tax election election, amend any Tax Return, settle or otherwise finally resolve any material tax controversy, or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(io) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause is reasonably likely to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respectArticle VIII not being satisfied; and
(jp) neither it nor any of its Subsidiaries will authorize any of, or enter into any agreement commit, resolve or agree, in writing or otherwise, to do take, any of the foregoingforegoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Computer Associates International Inc), Merger Agreement (Niku Corp)
Interim Operations. The Company covenants and agrees Except as to itself ------------------ and its Subsidiaries thatset forth on Schedule 5.08, after since the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):Interim Financial Statement Date:
(a) the business of it and its Subsidiaries shall be Business has been conducted by the Company only in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatespractices;
(b) it shall notthere has not occurred any change, (i) issueevent or circumstance that has had, sell or otherwise dispose of or subject could reasonably be expected to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charterhave, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentMaterial Adverse Effect;
(c) neither it nor any of its Subsidiaries shall the Company has not:
(i) authorize for issuance paid, discharged or issuesatisfied any claims, sell liabilities or otherwise dispose of obligations (absolute, accrued, contingent or subject to any Lien (otherwise), other than Permitted Liens) any shares ofthe payment, discharge or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than satisfaction in the ordinary and usual course of business and consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose practice of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities and obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary usual course of business and consistent with past practices, or practice;
(ii) terminateborrowed any amount or incurred or become subject to any other liabilities (absolute or contingent), establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring than trade payables in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planexcept as set forth on Schedule 5.08(c)(ii);
(eiii) neither it nor declared or made any payment or distribution of cash or other property to Seller or purchased or redeemed, or made any agreements to purchase or redeem, any of its equity securities;
(iv) issued, delivered, sold, pledged or encumbered, or authorized, proposed or agreed to the issuance, delivery, sale, pledge or encumbrance of, any shares of capital stock or bonds or any other security (or any right to acquire such capital stock or other security, including options) of the Company or any of its Subsidiaries, or any right, options or warrants with respect thereto;
(v) effected any recapitalization, reclassification or like change in the capitalization of the Company or any of its Subsidiaries, or declared or paid dividends on, or made other distributions in respect of, any of its capital stock, or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchased, redeemed or otherwise acquired, or modified or amended, any shares of capital stock of the Company or any of its Subsidiaries shallor any other securities thereof or any rights, except as may be required as a result of a change in law warrants or in GAAPoptions to acquire any such shares or other securities;
(vi) canceled any debts owing to the Company or waived any claims or rights;
(vii) sold, change transferred, or otherwise disposed of, any of the accounting principles or practices used by itAssets;
(fviii) neither it nor disposed of, failed to take reasonable steps to protect, or permitted to lapse, any of its Subsidiaries shall revalue rights for the use of, any Intellectual Property, or disposed of, failed to take reasonable steps to protect, or disclosed to any Person any Proprietary Information or Confidential Information;
(ix) made any change in any respect its methods of accounting or accounting practices;
(x) written off as uncollectible any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practice;
(xi) made any capital expenditures or capital expenditure commitments in excess of $10,000 individually or $25,000 in the aggregate, except as set forth on Schedule 5.08(c)(xi);
(xii) entered into any transaction or series of related transactions providing for payments by or to the Company in excess of $25,000 in the aggregate, whether or not in the ordinary course of business;
(xiii) made any change in the manner in which products or services have been developed or marketed;
(xiv) had any labor dispute or received notice of any grievance with respect thereto;
(xv) loaned or advanced any amount to, or made any payments to or received any payments from, or sold, transferred or leased any of its assets to, any Affiliate, except in the ordinary course of business;
(xvi) discharged or satisfied any Encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business consistent with past practices;
(gxvii) neither it nor made any change in the cash management or working capital management of the Company other than in the ordinary course of business;
(xviii) (A) terminated, canceled or requested any material change in, or agreed to any material change in, any Subsisting Contract, or (B) entered into any contract which would constitute a Subsisting Contract as defined herein, other than in the ordinary course of business consistent with past practices, in either case, other than as set forth on Schedule 5.08(c)(xviii);
(xix) adopted, agreed to adopt, or made any announcement regarding the adoption of (A) any new pension, retirement or other employee benefit plan, program or policy or (B) any amendment to any existing plan, policy or program;
(xx) increased the compensation, bonuses or benefits of any employee, officer, director, or consultant of the Company or any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any Subsidiaries, other than annual increases in the ordinary course of its material Contracts or waivebusiness consistent with past practices at the regularly scheduled times, release or assign any material rights or claimsother than as set forth on Schedule 5.08(c)(xx);
(hxxi) neither it nor amended or modified any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedthe organizational documents of the Company;
(ixxii) neither it nor made any material election with respect to Taxes or made any change in any such election;
(xxiii) made any change in its methods of its Subsidiaries shall take accounting in effect at November 30, 2005, except as required by changes in GAAP as agreed to by the Company's independent public accountants or as required by applicable law;
(xxiv) made any action charitable contributions or omit pledges, other than as set forth on Schedule 5.08(c)(xxiv);
(xxv) settled any Legal Proceeding to which the Company is or was a party, other than as set forth on Schedule 5.08(c)(xxv); or
(xxvi) suffered or agreed to take any action of the actions set forth in this subparagraph (c);
(d) the Business has been conducted by the Company only in the ordinary and usual course consistent with past practices;
(e) the Company has taken no steps to seek protection pursuant to any bankruptcy law, Seller has no reason to believe that any creditors of the Company intend to initiate involuntary bankruptcy proceedings against the Company, and Seller has no knowledge of any fact which would cause any of its representations and warranties herein reasonably lead a creditor to become untrue in any material respectdo so; and
(jf) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any none of the foregoingAssets has suffered any damage, destruction or casualty loss (as a result of fire, explosion or otherwise), whether or not covered by insurance.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Elec Communications Corp), Stock Purchase Agreement (Elec Communications Corp)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it and its Subsidiaries Subsidiaries' businesses shall be conducted in the ordinary and usual course consistent with past practices and(it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, to product extension or otherwise) the extent consistent therewith, business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or entering into or engaging in new lines of business);
(ii) it and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its their business organization organizations intact and maintain its their existing relations and goodwill with customers, vendors, suppliers, distributors, creditors, lessors, regulators, employees and business associates;
(biii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charter, bylaws or, except for articles of incorporation or by-laws or adopt any amendment which will not hinder, delay rights agreement or make more costly to Parent the Offer or the Mergersimilar agreement; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) authorize, declare, set aside or pay any dividend or other distribution payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentstock;
(civ) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof)property or assets; (iiB) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (liability, except for additional borrowings in the ordinary course under lines immaterial Liens arising by operation of credit in existence on the date hereof)law; (iiiC) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit to any capital expenditures other than as set forth in amounts less than $50,000 individually and $250,000 in Section 6.1(a)(iv)(C) of the aggregate or, by any means, Company Disclosure Letter; or (D) make any acquisition of, or investment in, assets or stock of any other Person;
(dv) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans except as required by Law or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except increases for increases employees who are not executive officers of the Company occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(fvi) neither it nor any of its Subsidiaries shall revalue in pay, discharge, settle or satisfy any respect any of its material assetsclaims, including writing down the value of inventory liabilities or writing-off notes obligations (absolute, accrued, asserted or accounts receivableunasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations in the ordinary and usual course of business consistent with past practicesbusiness;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvii) neither it nor any of its Subsidiaries shall make or change any material Tax election election, settle any audit, file any amended Tax Returns or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminatedterminated except in the ordinary and usual course of business;
(iviii) neither it nor any of its Subsidiaries shall enter into any Contract containing any provision or covenant limiting in any respect the ability of the Company or any of its Subsidiaries or any of their "AFFILIATES" (as defined in Rule 12b-2 under the Exchange Act) to (A) sell any products or services of or to any other Person, (B) engage in any line of business (including geographic limitations) or (C) compete with or obtain products or services from any Person, or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries or their Affiliates;
(ix) neither it nor any of its Subsidiaries will terminate, or amend, or modify in any material respect, any Material Company Contract;
(x) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jxi) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) During the period from the date of this Agreement through the Effective Time, (i) as requested by Parent, the Company shall confer on a regular basis with one or more representatives of Parent with respect to material operational matters, (ii) upon the knowledge of the executive officers of the Company of any event or occurrence that is reasonably likely to result in a Company Material Adverse Effect, any material litigation or material governmental complaints, investigation or hearings (or communications indicating that the same may be contemplated), the breach in any material respect of any representation, warranty or covenant contained herein, or the failure of any condition precedent to the Merger, the Company shall promptly notify Parent thereof and (iii) upon the knowledge of the executive officers of Parent of any event or occurrence that is reasonably likely to result in a Parent Material Adverse Effect or the failure of any condition precedent to the Merger, Parent shall promptly notify the Company thereof.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Medical Resources Management Inc), Agreement and Plan of Reorganization and Merger (Emergent Group Inc/Ny)
Interim Operations. The Company ICE and NYBOT each covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms (unless Parent ICE (in the case of NYBOT) or NYBOT (in the case of ICE) shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this AgreementAgreement or, in the case of NYBOT, except as otherwise set forth in Section 6.1 of the NYBOT Disclosure Letter or, in the case of ICE, except as otherwise set forth in Section 6.1 of the ICE Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with all Governmental Entities, Self-Regulatory Organizations, providers of order flow, customers, suppliers, distributors, creditors, lessors, employees and Employees, business associates, Members and stockholders, as appropriate;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend type of dividend, whether payable in cash, stock or property property, in respect of any Capital StockMembership Interests or capital stock, as appropriate, other than, in the case of ICE, dividends payable by direct or indirect wholly owned Subsidiaries of ICE to ICE or other direct or indirect wholly owned Subsidiaries of ICE and, in the case of NYBOT, dividends payable by direct or indirect wholly owned Subsidiaries of NYBOT to NYBOT or other direct or indirect wholly owned Subsidiaries of NYBOT; Table of Contents
(vc) repurchasein the case of NYBOT, redeem or otherwise acquire or permit any of neither it nor its Subsidiaries to purchase or otherwise acquireshall:
(i) issue any new Membership Interests, any shares of its Capital Stock other membership interests, capital stock or any securities convertible into or exchangeable or exercisable for any membership interests or shares of its Capital Stock; capital stock, Trading Rights, other trading permits or (vi) adopt a plan of complete trading rights, or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentlease rights;
(cii) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issuesell, sell or otherwise pledge, dispose of or subject to any Lien (other than Permitted Liens) any shares ofencumber, split, combine or reclassify, or repurchase, redeem or acquire any outstanding Membership Interests, other membership interests, capital stock or any securities convertible into or exchangeable or exercisable forfor any membership interests or shares of capital stock, Permits, Trading Rights, other trading permits or trading rights, or optionsany lease rights;
(iii) make any structural changes to NYBOT Clearing Corporation, warrants, calls, commitments or rights of any kind agree to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; ) list or clear any additional products or markets, change its risk policies or reduce its guaranty fund, liquidity or credit resources;
(iv) make any loans to any other Person (other than to Subsidiaries except as required by applicable Law or as set forth on Section 6.1(c)(iv) of the Company orNYBOT Disclosure Letter, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iiA) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and NYBOT Benefit Plan, as the case may be, or any other arrangement that would be a NYBOT Benefit Plan if in effect on the date hereof, or (B) increase or accelerate the salary, wage, bonus bonus, pension, welfare, severance or other compensation of any employees or directors (fringe benefits of any director, officer or employee or enter into any contract, agreement, commitment or arrangement to do any of the foregoing, except for increases occurring in the ordinary and usual course of businessbusiness consistent with past practice, which shall include normal periodic performance reviews and or (C) provide for the grant of any stock option, restricted stock, restricted stock unit or other equity-related compensation and benefit increasesaward, but not any general across-the-board increasesor (D) or consultants or pay or agree to pay any pensionchange of control or severance benefits to any NYBOT director or Employee in connection with the Merger, retirement allowance or other grant or provide for any severance, change in control or termination payments or benefits to any director, officer or employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor of NYBOT or any of its Subsidiaries shallSubsidiaries, or (E) take any action to accelerate the vesting or payment, or fund or in any way secure the payment, of compensation or benefits under any NYBOT Benefit Plan, to the extent not already provided in the any such NYBOT Benefit Plan, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required as a result of a change in law or in by GAAP, change or (G) establish, adopt, enter into or amend any collective bargaining agreement or (H) terminate any officer, other than for cause, in which case NYBOT shall promptly notify ICE of the accounting principles or practices used by itsuch termination;
(fv) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than except in the ordinary and usual course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall practice, settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other material property or assets (including membership interests or capital stock of any of its Subsidiaries Subsidiaries);
(vii) incur additional material indebtedness or other liability or modify any material indebtedness or other liability or modify any material indebtedness or other liability other than in the ordinary course of business;
(viii) make or authorize or commit to any capital expenditures (other than under its current business plan as disclosed to ICE prior to the date of this Agreement), acquisitions or other types of non-ordinary-course transactions;
(ix) except for a platform license and service agreement with ICE, which shall make provide that ICE shall license ICE’s electronic trading platform to NYBOT for a minimum period of 18 months from and after the date of this Agreement and that the costs of operation shall not exceed $3 million per year, and which shall contain such other commercially reasonable terms as mutually agreed by ICE and NYBOT as soon as reasonably practicable after the date of this Agreement (and in any event within 45 days after the date of this Agreement) (the “Platform License Agreement”), enter into any agreement to trade any products on an Table of Contents electronic trading platform or that would restrict NYBOT’s or its Subsidiaries’ ability to trade any product on an electronic trading platform; provided, however, if ICE and NYBOT are not able to reach agreement on the terms of the Platform License Agreement in accordance with the foregoing, NYBOT may, at its own expense, license an electronic trading platform from an alternate system vendor, provided that (A) such license agreement is terminable by NYBOT as of the Closing and (B) all costs associated with such license agreement from and after the Closing shall be deducted from the calculation of the Closing Cash Amount;
(x) change any material Tax election election, change any material method of Tax accounting, file any materially amended Tax Return, or settle or compromise any material audit or proceeding relating to Taxes or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ixi) neither it nor permit any change in its credit practices or accounting principles, policies or practice (including any of its Subsidiaries practices with respect to accounts receivable or accounts payable), except to the extent that any such changes in accounting principles, policies or practices shall take be required by changes in GAAP;
(xii) enter into any action “non-compete” or omit to take any action similar Contract that would cause restrict the business of the Surviving Corporation or any of its representations Affiliates following the Effective Time;
(xiii) except as permitted pursuant to Section 6.1(c)(iv) of the NYBOT Disclosure Letter, enter into any Contract between itself, on the one hand, or any of its Affiliates, employees, officers or directors, on the other hand;
(xiv) (A) amend or modify any of the NYBOT Organizational Documents or the NYBOT Subsidiary Organizational Documents, except for rule amendments or modifications that are consistent with past practice, that are not material and warranties herein that would not become Core Rights (as defined in the Bylaws) or (B) file with the CFTC any notice of such amendment or modification unless it shall simultaneously provide a written copy of such application to become untrue in any material respectICE; and
(jxv) neither it NYBOT nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing set forth in Sections 6.1(c)(i) – (xiv) if NYBOT would be prohibited by the terms of Sections 6.1(c)(i) – (xiv) from doing the foregoing. Notwithstanding anything to the contrary in this Agreement, ICE shall have the right to agree to and to consummate any acquisitions of another Person, including by agreeing to issue equity interests in ICE to such Person.
(d) In the case of NYBOT, it shall, and shall cause its Subsidiaries to, preserve their respective existing regulatory status in all jurisdictions, and shall not make any material change to their respective regulatory status in any jurisdiction.
(e) Prior to making any written or oral communications to the directors, officers or employees of NYBOT or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, NYBOT shall provide ICE with a copy of the intended communication, ICE shall have a reasonable period of time to review and comment on the communication, and ICE and NYBOT shall cooperate in providing any such mutually agreeable communication
Appears in 2 contracts
Sources: Merger Agreement (Intercontinentalexchange Inc), Merger Agreement (Intercontinentalexchange Inc)
Interim Operations. The Company FEI covenants and agrees as to itself ------------------ and its Subsidiaries thatSubsidiaries, and PIE covenants and agrees as to the PEO Group and the PEO Business that after the date hereof and prior to the Effective Time Closing (unless Parent the other party shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed), and except as otherwise expressly contemplated by this Agreement):Agreement or in connection with the Restructuring:
(a) the its business and that of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its they and their Subsidiaries shall use commercially reasonable their respective best efforts to preserve its their business organization organizations intact and maintain its their existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it they shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by them in any of its their Subsidiaries' Capital Stock owned by it; (ii) amend its chartertheir Articles of Association, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby-laws; (iii) split, combine or reclassify its their outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend or make any distribution payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its their Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock their capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it they nor any of its their Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock their capital stock of any class or any Voting Debt or any other property or assets (other than Shares than, in the case of FEI, shares of Common Stock issuable without further action of FEI's board of directors pursuant to Company Options options outstanding on the date hereofhereof under the Stock Option Plan); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of their Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assumeexcept as disclosed in budgets provided to the other party hereto prior to the date hereof, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in the ordinary and usual course of business and in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity; or (iv) enter into any joint venture, merger or other similar agreement with any Person;
(d) except as may be required for grants of options, consistent with FEI's past practice, pursuant to comply with applicable law or by existing contractual commitmentsits Stock Option Plan to purchase no greater than 5,000 shares of Common Stock, neither it they nor any of its their Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans, or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, business in accordance with established past practice (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(e) neither it they nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its their Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its their material Contracts or waive, release or assign any material rights or claims;
(hf) neither it they nor any of its their Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ig) neither it they nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its their Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Combination Agreement (Fei Co), Combination Agreement (Philips Electronics N V)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve consent in writing, writing (which approval consent shall not be unreasonably withheld or delayed, ) and except as otherwise expressly contemplated by set forth in this AgreementAgreement or the corresponding subsection of Section 3.1(a) of the Company Disclosure Letter):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and each of its Subsidiaries shall use commercially its respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the MergerOrganizational Documents; (iiiC) other than in the case of any direct or indirect, wholly owned Subsidiary, split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Company Voting Debt (other than Company Common Shares issuable pursuant to under the Company Options outstanding on the date hereofOption Plans); (iiB) other than products sold to customers in the ordinary and usual course of business (without limitation as to dollar amount) or otherwise in the ordinary and usual course of business and not in an aggregate amount of more than $5,000,000, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness other than (x) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries or (y) indebtedness in an aggregate amount less than $30,000,000; provided, however, that prior to incurring any indebtedness, if practicable, the Company shall provide Parent with a reasonable right of consultation; provided, further, that the foregoing right of consultation shall not apply in the case of indebtedness in respect of letters of credit, guarantees or performance bonds or indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries; (D) except as approved by the Transition Team, make or authorize or commit for any capital expenditures which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $10,000,000; and (E) except as otherwise provided in clause (D) immediately above and other than raw materials, supplies and other inventory items acquired in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate orpractice, by any means, make any acquisition acquisitions of, or investment investments in stock of (or other interest in, ) or assets or stock of any other Person;
(div) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iiA) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Company Compensation and Benefit Plan Plans except as required by any Laws or the terms of applicable collective bargaining agreements, (B) other than in the ordinary and usual course of business consistent with past practice and the Company’s compensation budget with respect to employees at an annual compensation level of less than $150,000, increase or accelerate the salary, wage, bonus or other compensation of any employees employee or directors (C) except for increases occurring as approved by the Transition Team, hire any employee at an annual compensation level expected to be more than $100,000;
(v) except in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any material Tax election or permit file any insurance policy naming it material income Tax Return inconsistent with past practice or implement or adopt any change in its accounting principles or material accounting practices, in all cases other than as a beneficiary may be required by applicable Law or loss- payable payee to be canceled or terminatedby Canadian GAAP;
(ivii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(jviii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) and except as otherwise expressly set forth in this Agreement or the corresponding subsection of Section 3.1(b) of the Parent Disclosure Letter):
(i) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and each of its Subsidiaries shall use its respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(ii) it shall not (A) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (B) except as provided in Section 3.19, amend its Organizational Documents or amend, modify or terminate the Parent Rights Agreement; (C) other than in the case of any direct or indirect, wholly owned Subsidiary, split, combine or reclassify its outstanding shares of capital stock; (D) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than (x) dividends from its direct or indirect wholly owned Subsidiaries and (y) regular quarterly cash dividends in respect of Parent Common Stock, not in excess of $0.26 per share per quarter, with declaration and record dates consistent with past practice; or (E) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) neither it nor any of its Subsidiaries shall (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Parent Voting Debt (other than Parent Common Stock issuable under the Parent Stock Plans); (B) other than (x) as Parent deems reasonably necessary to obtain the consent, approval or authorization of any Governmental Entity in order to consummate the transactions contemplated by this Agreement and the Arrangement, (y) products sold to customers in the ordinary and usual course of business (without limitation as to dollar amount) or (z) otherwise in the ordinary and usual course of business and not in an aggregate amount of more than $5,000,000, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness other than (x) commercial paper, (y) indebtedness existing solely between Parent and its wholly owned Subsidiaries or between such wholly owned Subsidiaries or (z) indebtedness in an aggregate amount less than $30,000,000; provided, however, that prior to incurring any indebtedness, if practicable, Parent shall provide the Company with a reasonable right of consultation; provided, further, that the foregoing right of consultation shall not apply in the case of indebtedness in respect of commercial paper, letters of credit, guarantees or performance bonds or indebtedness existing solely between Parent and its wholly owned Subsidiaries or between such wholly owned Subsidiaries; (D) except as approved by the Transition Team, make or authorize or commit for any capital expenditures which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $10,000,000; and (E) except as otherwise provided in clause (D) immediately above and other than raw materials, supplies and other inventory items acquired in the ordinary and usual course of business consistent with past practice, by any means, make any acquisitions of, or investments in stock of (or other interest in) or assets of any other Person;
(iv) neither it nor any of its Subsidiaries shall (A) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Parent Compensation and Benefit Plans except as required by any Laws or the terms of applicable collective bargaining agreements, (B) other than in the ordinary and usual course of business consistent with past practice and Parent’s compensation budget with respect to employees at an annual compensation level of less than $150,000, increase the compensation of any employee or (C) except as approved by the Transition Team, hire any employee at an annual compensation level expected to be more than $100,000;
(v) except in the ordinary and usual course of business, neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(vi) neither it nor any of its Subsidiaries shall make any material Tax election or file any material income Tax Return inconsistent with past practice or implement or adopt any change in its accounting principles or material accounting practices, in all cases other than as may be required by applicable Law or by U.S. GAAP;
(vii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(viii) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Combination Agreement (Donnelley R R & Sons Co), Combination Agreement (Moore Wallace Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except Except as otherwise expressly contemplated by this Agreement, as set forth in Section 5.01 of the Company Disclosure Schedule, as required by applicable Law, for Expenses incurred by the Company or as otherwise agreed to in writing by Parent, the Company covenants and agrees that during the period from the date of this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) the business and operations of it the Company and its Subsidiaries subsidiaries shall be conducted in the ordinary and usual course of business consistent with past practices and, to practice and the extent consistent therewith, it Company and its Subsidiaries subsidiaries shall use commercially reasonable efforts to preserve its intact their current business organization intact organizations, keep available the services of their current officers and maintain its existing relations key employees and goodwill preserve their relationships with their material customers, suppliers, licensors, licensees and distributors, creditors, lessors, employees and business associates;
(b) it the Company shall not, not (i) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise dispose encumber any shares of its capital stock or subject to Lien (other than Permitted Liens) the capital stock of any of its Subsidiaries' Capital Stock owned by it; subsidiaries, any other securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, securities or convertible securities or any other securities or equity equivalents (ii) amend its charter, bylaws orincluding stock appreciation rights or phantom interests), except for any amendment which will not hinderissuances of Common Shares upon the exercise of Options or Warrants outstanding as of the date of this Agreement, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (vii) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries subsidiaries to purchase repurchase, redeem or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into other equity interests of the Company or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall subsidiaries (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or including securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, capital stock or other equity interests of the Company or any of its subsidiaries) except for forfeitures of Common Shares issued pursuant to Restricted Stock Awards, (iii) sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it in any of its subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its subsidiaries, (iv) amend or otherwise change its certificate of incorporation or bylaws or permit any of its subsidiaries to amend its certificate of incorporation, bylaws or similar organizational documents, (v) split, combine or reclassify any shares of its Capital Stock capital stock, and shall not permit any of its subsidiaries to split, combine or reclassify any shares of its capital stock or (vi) amend or otherwise change the terms of any class Warrants;
(c) the Company shall not, and shall not permit any of its subsidiaries to (i) declare, set aside or pay any Voting Debt dividends on (whether in cash, stock or other than Shares issuable pursuant property), or make any other distributions in respect of, any of its capital stock (except for dividends paid to the Company Options outstanding on by direct or indirect wholly-owned subsidiaries of the date hereofCompany); , (ii) other than acquire or agree to acquire, including by merging or consolidating with, or purchasing the assets (except raw materials, inventory or supplies in the ordinary and usual course of business consistent with past practicespractice) or capital stock or other equity interests of, transferor by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or (iii) enter into, amend, modify or supplement any Contract, transaction, commitment or arrangement with any current or former officer, director, employee or other affiliate of the Company or any of its subsidiaries;
(d) neither the Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner the compensation, severance benefits or fringe benefits of, or pay any severance or bonus to, any current or former director, officer or employee except for payments made in accordance with Sections 5.11(b) and 5.11(c) hereof, (ii) except as provided in Section 5.11(d) of this Agreement and Section 5.11(d)(iii) of the Company Disclosure Schedule, enter into any new or amend any existing employment, consulting, severance, termination, change-of-control or indemnification Contract with any director, officer or employee of the Company, (iii) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including Section 2.02 hereof), become obligated under any Benefit Plan that was not in existence on the date of this Agreement or amend, modify or terminate any Benefit Plan or other employee benefit plan or any Contract, arrangement, plan or policy for the benefit of any current or former director, officer or employee in existence on the date of this Agreement or (iv) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including Section 2.02 hereof), pay any benefit not required by any plan or arrangement as in effect as of the date of this Agreement (including the granting of, acceleration of, exercisability of or vesting of stock options, stock appreciation rights or restricted stock, except as otherwise contemplated by this Agreement), except in connection with terminating the Options and the Stock Plans pursuant to Section 2.02 and except for the payment of the employer match under the Company’s 401(k) plan;
(e) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, guarantee, sell mortgage or otherwise dispose of encumber or subject to any Lien (or otherwise dispose of, or agree to sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of, any of its properties or assets that are material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole, other than Permitted Liens) any sales of inventory and other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course of business consistent with past practice;
(f) except pursuant to a Material Contract, the Company shall not, and shall not permit any of its subsidiaries to (i) incur, assume, pre-pay, discharge or satisfy any Indebtedness or enter into any Contract to incur, assume, pre-pay, discharge or satisfy any Indebtedness, or guarantee, or agree to guarantee, any such Indebtedness or obligation of another Person, or issue or sell, or agree to issue or sell, any debt securities or options, warrants or calls or rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of others, enter into any “keep well” or other Contract to maintain any financial statement condition of another Person or enter into any Contract or arrangement having the economic effect of any of the foregoing, or (ii) make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any Person, other than (y) loans between or among the Company and any of its wholly-owned subsidiaries and (z) cash advances to the Company’s or its subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business;
(g) neither the Company nor any of its subsidiaries shall adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries;
(h) the Company shall not, and shall not permit any of its subsidiaries to, (i) enter into, or amend, modify, elect not to renew or terminate or waive, release or assign any rights under lines any Material Contract in any material respect in a manner which is adverse to the Company or its subsidiaries (other than entering into a new Material Contract to replace a Material Contract which has terminated without a breach thereunder by its terms, which new Material Contract is consistent with the terms of credit the terminated Material Contract);
(i) except for customer Contracts entered into in existence on the date hereof); ordinary course of business consistent with past practice, the Company shall not, and shall not permit its subsidiaries to, renegotiate or enter into any new material Contract, license, arrangement or other relating to any Proprietary Rights;
(j) the Company and its subsidiaries (i) shall comply in all material respects with their obligations under the Material Contracts as such obligations become due, (ii) shall continue in force insurance covering risks of such types and in such amounts as are consistent with the Company’s past practices and (iii) assumeshall not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(k) the Company shall not, guaranteeand shall not permit any of its subsidiaries to, endorse make any capital expenditure or otherwise become liable commitments not consistent with the expenditures in the Company’s capital budget for 2008 provided to Parent;
(l) the Company shall not, and shall not permit any of its subsidiaries to make any material changes in their respective standardized or responsible (whether directlyother sales terms and conditions, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Personpractice;
(dm) except as may be required to comply with applicable law or by existing contractual commitmentsthe Company shall not, neither it nor and shall not permit any of its Subsidiaries subsidiaries to, enter into any settlement, conciliation or similar Contract with any Governmental Authority or that requires payment of any material consideration after the execution date of this Agreement;
(n) the Company shall not, and shall not permit any of its subsidiaries to, (i) enter into settle or compromise any new agreements pending or commitments for threatened Claim, except with respect to the settlement or compromise of any severance such Claim where the full amount paid or termination pay toto be paid is covered by insurance coverage maintained by the Company, (ii) change any of the accounting policies, practices or enter into any employment procedures (including material Tax accounting methods, periods, policies, practices or severance agreement with, procedures) or any of its directorsmethods of reporting income, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus deductions or other compensation of any employees or directors (except items for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shallfinancial accounting purposes, except as may be required as a result of a change in law GAAP enacted after the date of this Agreement, or in GAAP, change any of the accounting principles or practices used by it;
(fiii) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than except in the ordinary course of business and in a manner consistent with past practices;
(g) neither it nor practice, make, change or rescind any of its Subsidiaries shall material Tax election, enter into any material closing agreement relating to Taxes, settle or compromise any material claims Tax liability, audit, claim, proceeding or litigation assessment, file any material amended Tax Return, surrender any right to claim a refund of material Taxes, or terminate consent to any extension or materially amend waiver of the limitation period applicable to any material Tax liability or modify assessment;
(o) the Company shall not, and shall not permit any of its material Contracts or waivesubsidiaries to, release or assign allow any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein Company Proprietary Rights to become untrue in any material respectabandoned or expired for failure to make required filings or pay required fees; and
(jp) neither it nor the Company shall not, and shall not permit any of its Subsidiaries will authorize subsidiaries to, agree or enter into any agreement commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Bard C R Inc /Nj/), Merger Agreement (Specialized Health Products International Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
): (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
; (b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws by-laws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; the Rights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockStock other than the issuance of Rights in connection with the issuance of Capital Stock upon the exercise of Company Options; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock Stock; or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
; 17 23 (c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof, the grant of Company Options to newly hired employees in accordance with a benefit matrix previously provided to Parent and after notification of Parent and automatic grants of director stock options as mandated by the Company's First Amended 1988 Nonqualified Stock Option Plan for Outside Directors); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 150,000 individually and $250,000 3,000,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
; (d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 ten of the Company's employees, including employees and one of its directors, directors which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
; (e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
; (f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
; (g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
; (h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
; (i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
and (j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.. 18
Appears in 1 contract
Sources: Merger Agreement (Intel Corp)
Interim Operations. The Except with Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause each of the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior (i) to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the conduct its business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and use its Subsidiaries shall use commercially reasonable efforts to (A) preserve its business organization intact and organizations intact, (B) maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, and (C) keep available the services of its present employees and agents; and (ii) not to (other than as set forth in the corresponding section of the Seller Disclosure Letter):
(a) amend its Organizational Documents;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize merge or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentPerson;
(c) neither it nor any acquire assets outside of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to practice from any other Person (other than to Subsidiaries of the Company or, customary loans with a value or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 purchase price in the aggregate or, by in excess of $50,000,000.00 or that would have any means, make any acquisition of, possibility of preventing or investment in, assets or stock of any other Persondelaying the Closing beyond the Termination Date;
(d) except as may be required to comply with applicable law issue, sell, pledge, dispose of, grant, transfer, Encumber, or by existing contractual commitmentsauthorize the issuance, neither it nor sale, pledge, disposition, grant, transfer, lease, license, guarantee or other Encumbrance of, any Equity Interests of the Company or any of its Subsidiaries shall (other than the issuance of Equity Interests (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 by a wholly-owned Subsidiary of the Company's employees, including one of its directors, which have been previously disclosed Company to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, Company or another wholly-owned Subsidiary or (ii) terminateby the Company to Seller), establish, adopt, enter securities convertible or exchangeable into, make any new grants or awards under, amend or otherwise modifyexercisable for, any Compensation and Benefit Plan Equity Interests or increase or accelerate the salaryany options, wage, bonus warrants or other compensation rights of any employees kind to acquire any such Equity Interests or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) such convertible or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planexchangeable securities;
(e) neither it nor create or incur any Encumbrance (other than a Permitted Encumbrance) on the assets of the Company or any of its Subsidiaries shallthat, except as may be required as a result of a change in law individually or in GAAPthe aggregate, change is material to the Company or any of the accounting principles or practices used by itits Subsidiaries;
(f) neither it nor make any of its Subsidiaries shall revalue loans, advances, guarantees or capital contributions to or investments in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivablePerson, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.than
Appears in 1 contract
Sources: Stock Purchase Agreement
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which such approval shall not to be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) and except as required by applicable Laws, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course of business consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, agents, customers, suppliers, distributors, creditors, lessors, employees and other Persons with whom they have business associatesrelationships. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (i) as otherwise contemplated or permitted by this Agreement, (ii) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (iii) as is required by applicable Law or any Governmental Entity or (iv) as set forth in Schedule 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(A) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments;
(B) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate;
(C) make any material acquisition, by purchase, merger, consolidation, other business combination or otherwise, of stock or assets from any Person (other than a wholly-owned Subsidiary of the Company);
(D) 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 Company or any of its Subsidiaries (other than (1) the issuance of Shares upon the exercise of Company Options or Warrants or (2) the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary) 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;
(E) make any loans, advances or capital contributions to or investments in any Person in excess of $250,000 in the aggregate (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) except in accordance in all material respects with the Company’s investment policy in effect as of the date hereof (the “Investment Policy”), a copy of which is included in Schedule 6.1 of the Company Disclosure Letter; provided, however, that no investments whatsoever shall be made in those entities set forth on Schedule 6.1(a)(E) of the Company Disclosure Letter;
(F) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (other than the Company’s regular quarterly cash dividends in respect of the Shares not to exceed $0.08 per share) or enter into any agreement with respect to the voting of its capital stock or otherwise make any payments to its stockholders in their capacity as such;
(G) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, or amend the terms of any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the acquisition of any Shares tendered by current or former employees or directors in connection with the exercise of Company Options or pursuant to puts and calls in employee and former employee stockholder agreements);
(H) incur, assume or prepay any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for borrowings in the ordinary course under the Company’s credit facility, a copy of which has been made available to Parent (and which shall not be amended, waived or modified after the date hereof) the proceeds of which shall be used for operating purposes;
(I) make or authorize any capital expenditure in excess of $1,000,000 in the aggregate;
(J) make any material changes with respect to actuarial, marketing, underwriting, claims management, pricing, reserving, reinsurance, investment or accounting policies or procedures, except as required by changes in GAAP or Law or by a Governmental Entity;
(K) waive, release, assign, settle or compromise any litigation or other proceedings before a Governmental Entity for an amount in excess of $500,000 or any obligation or liability of the Company in excess of such amount, in any case without the imposition of equitable relief or any restrictions on the business and operations of, on or the admission of wrongdoing by, the Company or any of its Subsidiaries;
(L) change or make any material Tax election, settle or compromise any material Tax liability or change any material method of accounting with respect to Taxes;
(M) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or otherwise dispose of any assets, securities, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries and including by merger, consolidation, asset sale or other business combination, other than obsolete assets in the ordinary course of business and investments in accordance in all material respects with the Investment Policy;
(N) except as contemplated by this Agreement, required pursuant to agreements in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (1) grant or provide any severance or termination payments or benefits to any director, elected officer of the Company listed on Schedule 6.1(a)(N) (the “Elective Officers”) or employee of the Company or any of its Subsidiaries, except, in the case of employees who are not Elective Officers, in the ordinary course of business, (2) increase the compensation or make any new equity awards to any director, Elective Officer or employee of the Company or any of its Subsidiaries, except, in the case of employees who are not Elective Officers of the Company, in the ordinary course of business, (3) establish, adopt, terminate or materially amend any Benefit Plan (other than as may be necessary to comply with applicable Laws or to avoid adverse Tax consequences) or (4) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Affiliate Transaction;1
(O) enter into, renew, extend, amend or terminate any Material Contract (other than Company Producer agreements in the ordinary course of business);
(P) take any action that would reasonably be expected to result in a reduction of any financial ratings of the Company, including the insurer financial strength ratings of the Company and its insurance Subsidiaries; or
(Q) except as provided in Section 6.2 and Section 8.3(a), agree, authorize or commit to do any of the foregoing.
(b) it Parent shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire knowingly take or permit any of its Subsidiaries to purchase take, directly or otherwise acquireindirectly, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein is reasonably likely to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize prevent, delay or enter into any agreement to do any impair the consummation of the foregoingMerger.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof of this Agreement and prior to the Effective Time (unless Parent shall otherwise approve in writing, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) ), the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, and it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (C) as expressly set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend its charter or by-laws, or, subject to the terms of this Agreement, otherwise take any action to exempt any Person (other than Parent or its Subsidiaries) or any action taken by any Person from the Rights Agreement or any Takeover Statute or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(bii) it shall not, (i) issue, sell merge or otherwise dispose of consolidate the Company or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws orSubsidiaries with any other Person, except for any amendment which will not hindersuch transactions among wholly owned Subsidiaries of the Company, delay or make more costly to Parent the Offer restructure, reorganize or the Merger; completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) splitacquire from any other Person outside of the ordinary course of business any asset or group of related assets with a value or purchase price in excess of $1,000,000 individually or $2,500,000 in the aggregate, combine in any transaction or reclassify its outstanding series of related transactions, in each case other than acquisitions pursuant to Contracts as in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, any shares of Capital Stock; capital stock of the Company or any of its Subsidiaries (ivother than the issuance of shares by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company), 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;
(v) create or incur any Encumbrances, individually or in the aggregate, material to the Company or any of its Subsidiaries or on any asset or group of related assets of the Company or any of its Subsidiaries having a value in excess of $500,000 individually or $2,500,000 in the aggregate;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $100,000 individually or $250,000 in the aggregate outstanding at any given time;
(vii) declare, set aside aside, make or pay any dividend or other distribution, payable in cash, stock stock, property or property in otherwise, with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit to any of its Subsidiaries capital stock (except for dividends paid by any direct or indirect Subsidiary of the Company to its stockholders or unit holders on a pro rata basis in the ordinary course of business consistent with past practices) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable into or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cix) neither it nor incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries shall (i) authorize Subsidiaries, except for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than indebtedness for borrowed money incurred in the ordinary and usual course of business consistent with past practicespractices (A) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the terms of the indebtedness being replaced as of the date of such replacement, transferor (B) guarantees by the Company of indebtedness of wholly owned Subsidiaries of the Company complying with clause (A) above;
(x) except as expressly set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, leasemake or authorize any capital expenditures that in the aggregate exceed by more than 15% from the aggregate capital expenditures in such capital budgets in respect of the period from the date of this Agreement to the Closing;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in Contracts entered into the ordinary course under lines of credit in existence business consistent with past practices and (A) terminable by the Company, without penalty, on ninety (90) days or less notice effective on the date hereoflater of September 30, 2014 or ninety (90) days or less after Closing and (B) not involving anticipated required consideration by the Company or any of its Subsidiaries at or after the Closing in excess of $5,000,000;
(xii) enter into any Contract of the type specified in clauses (A); , (iiiG), (I), (J), (K), (L), (M) assumeor (N) of Section 5.1(m);
(xiii) amend, guaranteemodify or terminate any Material Contract, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations (A) terminable by the Company, without penalty, on ninety (90) days or less notice effective on the later of Subsidiaries of September 30, 2014 or ninety (90) days or less after Closing (or, in each case, such longer time period as in effect prior to any such amendment or modification pursuant hereto), and (B) not involving required anticipated additional consideration by the Company incurred or any of its Subsidiaries at or after the Closing in excess of $5,000,000;
(xiv) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles, by Regulation S-X under the Securities Act, or by the Public Company Accounting Oversight Board or Financial Accounting Standards Board;
(xv) settle (x) any litigation or claim or (y) other proceedings before a Governmental Entity, in each case for an amount in excess of $1,000,000 (excluding amounts that may be paid under insurance policies);
(xvi) cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value or cost in excess of $250,000 individually or $2,000,000 in the aggregate;
(xvii) make or change any material Tax election or method of Tax accounting; amend any Tax Return with respect to a material amount of Taxes; settle or otherwise finally resolve any audit or dispute with respect to material amount of Taxes, other than, in each case, in the ordinary course of business; business consistent with past practice;
(ivxviii) transfer, sell, lease, assign, license, surrender, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any part of its assets (including Intellectual Property), licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, except in connection with services or products provided in the ordinary course of business and sales of obsolete assets and except for sales, leases, licenses or other dispositions of any asset or any group of related assets (other than wireless spectrum) with a fair market value not in excess of $250,000 individually or $500,000 in the aggregate, other than pursuant to Contracts as in effect as of the date of this Agreement;
(xix) except as required pursuant to a Benefit Plan or existing written, binding agreements as in effect as of the date of this Agreement, or as otherwise required by applicable Law, (A) other than the payment of regular base salaries, at the rates in effect as of the date of this Agreement or wages and other non-discretionary compensation, make any compensation payments or awards, including the grant of any equity or cash awards, to any director, officer or employee of the Company or any of its Subsidiaries, (B) grant or increase the compensation, severance or other benefits payable or to become payable to any director, officer or employee of the Company or any of its Subsidiaries, (C) adopt, enter into, establish, or materially amend, modify or terminate any Benefit Plan or any employment, individual consulting, collective bargaining, bonus or other incentive compensation, health or other welfare, pension, retirement, severance, deferred compensation or other compensation or benefit plan with, for or in respect of any director, officer or employee of the Company or any of its Subsidiaries that would constitute a Benefit Plan had it been in effect as of the date of this Agreement, (D) materially amend the terms of any outstanding equity-based awards, (E) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or (G) forgive any loans to any directors, officers or employees of the Company or any of its Subsidiaries;
(xx) (A) enter into any line of business in any geographic area other Person than the current lines of business of the Company and its Subsidiaries and products and services reasonably ancillary thereto (including any current line of business and products and services reasonably ancillary thereto in any geographic area for which the Company or any of its Subsidiaries currently holds a FCC License authorizing the conduct of such business, product or service in such geographic area), or (B) except as currently conducted, engage in the conduct of any business in any state which would require the receipt or transfer of an FCC License or any other Permits issued by any Governmental Entity authorizing operation or provision of any communication services or foreign country that would require the receipt or transfer of, or application for, a Permit or FCC License to the extent such license would be reasonably expected to prevent, materially delay or materially impair the consummation of the transactions contemplated herein;
(xxi) file for any Permit or FCC License (A) outside of the ordinary course of business or (B) the receipt of which would, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair consummation of the transactions contemplated herein;
(xxii) assign, transfer, cancel, fail to renew or fail to extend any FCC License or Permit;
(xxiii) change (other than pursuant to Subsidiaries software updates, upgrades and patches) any of the Company ormaterial technology in the Network Assets, customary loans enterprise software or advances to employees billing software used in connection with business-related travel its respective businesses;
(xxiv) except in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modifymodify in any manner any Ground Lease, any Compensation and Benefit Plan Governmental Use Permit, Colocation Agreement, Third Party Colocation Agreement or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;Third Party Cell Site Agreement; or
(exxv) neither it nor any of its Subsidiaries shallagree, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) The Company and Parent shall cooperate in developing language for a program of communications or notices relating to the Merger or the other transactions contemplated by this Agreement to be sent to customers of the Company and its Subsidiaries on or after the date of this Agreement and prior to the Closing. The Company shall not, and shall cause its Subsidiaries not to, send any communications or notices relating to the Merger or the other transactions contemplated by this Agreement to customers of the Company and its Subsidiaries on or after the date of this Agreement and prior to the Closing without the prior written approval of Parent (not to be unreasonably withheld).
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself and ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writingTime, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;, and neither the Company nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect. By way of amplification of the foregoing and not limitation, neither the company nor any of its Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, take any action, including but not limited to the following, except with the prior consent of a Designated Officer (as defined below):
(ba) it shall not, not (i) issueamend its articles of incorporation or by-laws, sell except as may be required to increase the number of shares of Common Stock in connection with the conversion of the Convertible Loan, the Series A Preferred or otherwise dispose the Series B Preferred, in each case outstanding as of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itthe date hereof; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iviii) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (viv) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cb) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets, except for (other than Shares issuable pursuant to Company Options x) issuances of Common Stock upon conversion of the Convertible Loan, the Series A Preferred or the Series B Preferred, in each case outstanding on the date hereof), and (y) issuances of Series B Preferred upon exercise of warrants outstanding on the date hereof; (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations including capital stock of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practicesits Subsidiaries); or (viii) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other PersonPerson or entity;
(dc) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Company Compensation and Benefit Plan Plans (including, without limitation, any grant or issuance of new Options, any amendment or changes to the terms of any Options or any repricing of Options), or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planemployees;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(gd) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(he) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(if) neither it nor make any of change, other than required by GAAP, to its Subsidiaries shall take any action accounting principles or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectprocedures; and
(jg) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Sohu Com Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) During the period from the date hereof of this Agreement and prior to continuing until the earlier of the termination of this Agreement or the Effective Time Time, except as set forth in the Disclosure Statement, unless Wats▇▇ ▇▇▇ consented in writing thereto (unless Parent shall otherwise approve in writing, which approval consent shall not be unreasonably withheld or delayedwithheld), the Company shall, and except as otherwise expressly contemplated by this Agreement):shall cause each of its Subsidiaries to,:
(ai) conduct their respective operations according to their usual, regular and ordinary course in substantially the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, same manner as heretofore conducted;
(ii) to the extent consistent therewithwith their respective businesses, it and its Subsidiaries shall use commercially reasonable efforts to preserve its intact their respective business organization intact organizations and goodwill, keep available the services of their respective officers and employees and maintain its existing relations and goodwill satisfactory relationships with customers, suppliers, distributors, creditors, lessors, employees and those persons having business associatesrelationships with them;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine not amend their respective Certificates of Incorporation or reclassify its outstanding shares of Capital Stock; By-Laws or comparable governing instruments;
(iv) declarepromptly notify Wats▇▇ ▇▇ any material emergency or other Company Material Adverse Effect, set aside any material litigation or pay any dividend payable in cashmaterial governmental complaints, stock investigations or property in respect hearings (or communications indicating that the same may be contemplated), or the material breach of any Capital Stock; representation or warranty contained herein;
(v) repurchasepromptly deliver to Wats▇▇ ▇▇▇e and correct copies of any report, redeem statement or otherwise acquire or permit any schedule filed with the SEC subsequent to the date of its Subsidiaries this Agreement;
(vi) not (A) except pursuant to purchase or otherwise acquirethe exercise of options, warrants, conversion rights and other contractual rights existing on the date hereof and disclosed pursuant to this Agreement, issue any shares of its Capital Stock capital stock, effect any stock split or otherwise change its capitalization as it existed on the date hereof; (B) grant, confer or award any securities convertible into option, warrant, conversion right or exchangeable or exercisable for other right not existing on the date hereof to acquire any shares of its Capital Stockcapital stock; (C) increase any compensation or (vi) adopt a plan of complete enter into or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate amend any employment agreement with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall present or future officers, directors or employees, except for normal increases consistent with past practice; (iD) authorize for issuance grant any severance or issue, sell or otherwise dispose of or subject termination package to any Lien (other than Permitted Liens) any shares ofemployee or consultant, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind except to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business extent consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iiiE) assumehire any new employee who shall have, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for terminate the obligations employment of any other Person except employee who has, an annual salary in the ordinary course excess of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)$80,000; or (vF) make adopt any commitments fornew employee benefit plan (including any stock option, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets stock benefit or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increasespurchase plan) or consultants or pay or agree to pay amend any pension, retirement allowance or other existing employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue plan in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement , except for changes which are less favorable to do any of the foregoing.participants in such plans;
Appears in 1 contract
Interim Operations. The (a) Except as set forth in this Agreement or on Schedule 7.1, each of the Parent and the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof of this Agreement and prior to the Effective Time (unless Parent the other party shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement, disclosed in the Schedules attached hereto or required by applicable Law):
(ai) the The business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it It shall not, : (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (vD) repurchase, redeem or otherwise acquire acquire, except in connection with existing commitments under the Parent or Company Stock Plans but subject to the obligations under subparagraph (iii) below, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither Neither it nor any of its Subsidiaries shall (itake any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) authorize for issuance of the Code or issue, sell or otherwise dispose of or subject to that would cause any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant representations and warranties in this Agreement to Company Options outstanding on the date hereof); (ii) other than become untrue in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; respect;
(iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither Neither it nor any of its Subsidiaries shall ERISA Affiliates shall: (iA) enter into any new agreements accelerate, amend or commitments for any severance change the period of exercisability of or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend of stock-based compensation or otherwise modify, other benefits under any Compensation and Benefit Plan Plans; (B) amend or otherwise modify any Compensation and Benefit Plans; or (C) increase or accelerate the salary, wage, bonus or other compensation of any employees directors, officers or directors (except for increases occurring key employees, in the ordinary case of (A), (B) and (C), except (x) for grants or awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (y) in the normal and usual course of business, its business (which shall may include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing increases and the provision of individual Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business Plans consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle practice for promoted or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.newly hired
Appears in 1 contract
Sources: Merger Agreement (Corzon Inc)
Interim Operations. The Company covenants and agrees Except as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall SN may otherwise approve consent in writing, between the date of this Agreement and the date of the Closing and except as contemplated by this Agreement, to the extent within its control, Altpoint shall not (nor shall it, to the extent within its control under the Redemption Agreement, permit Resources or Acquisition, through the granting of a consent or waiver thereunder, except as expressly required therein, to):
(a) sell, transfer, assign, convey or otherwise dispose of any Properties other than (i) oil, gas and other hydrocarbons produced, saved and sold in the ordinary course of business, (ii) personal property and equipment which approval is replaced with property and equipment of comparable or better value and utility in the ordinary and routine maintenance and operation of the Properties and (iii) sales, transfers, assignments, conveyances or other dispositions by and between Resources and Acquisition;
(b) create or permit the creation of any Encumbrance on the Properties, other than Permitted Encumbrances;
(c) grant any preferential right to purchase or similar right or agree to require the consent of any party to the transfer and assignment of the Properties to SN;
(d) designate any Person, other than ▇▇▇▇▇▇▇ Oil & Gas Corporation, as an operator of the Properties;
(e) incur or agree to incur any contractual obligation or liability, whether absolute, contingent, matured or unmatured, which would constitute an assumed liability by SN as provided in Section 6 above; provided, that Altpoint may incur such obligations or liabilities in the ordinary course of business or in the ordinary and routine maintenance and operation of the Properties with the consent of SN, which consent shall not be unreasonably withheld or delayed; provided, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted that any such obligation or liability incurred with SN’s consent would not, either individually or in the ordinary and usual course consistent with past practices andaggregate, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt have a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding material adverse effect on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by itProperties;
(f) neither it nor enter into any transaction the effect of which, considered as a whole, would be to cause Altpoint’s ownership interest in any of the Properties to be altered from its Subsidiaries shall revalue in any respect any ownership interest as of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;date hereof; or
(g) neither it nor any of its Subsidiaries shall settle agree or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement commit to do any of the foregoingforegoing or to grant a waiver of any covenant for the benefit of Altpoint under Section 8.1 of the Redemption Agreement.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) From the date hereof and prior until the Closing Date, Seller shall (or, with respect to the Effective Time (unless Parent shall otherwise approve in writingAssets that are not Seller Operated Assets, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use its commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customerscause the operator of such Assets in which it owns working interests to):
(i) not abandon any Well on any Lease capable of commercial production, suppliersor release or abandon all or any part of the Assets capable of commercial production, distributors, creditors, lessors, employees and business associatesor release or abandon all or any portion of the Leases without Purchaser’s written consent;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charternot cause the Assets to be developed, bylaws or, except for any amendment which will not hinder, delay maintained or make more costly to Parent the Offer or the Merger; operated in a manner materially inconsistent with prior operation;
(iii) splitnot commence or agree to participate in any operation on the Seller Operated Assets anticipated to cost in excess of one hundred thousand and NO/100 Dollars ($100,000.00) per operation, combine or reclassify its outstanding shares any operation on the Assets not operated by Seller anticipated to cost in excess of Capital Stock; one hundred thousand and NO/100 Dollars ($100,000) per operation, net to Seller’s interest, without Purchaser’s written consent (except emergency operations, operations required under presently existing contractual obligations, and operations undertaken to avoid any penalty provision of any applicable agreement or order);
(iv) declarenot create any lien, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness security interest or other liability encumbrance with respect to the Assets (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereofPermitted Encumbrances); (iii) assume, guaranteeor, endorse or otherwise become liable or responsible (whether directlywithout Purchaser’s written consent, contingently or otherwise) enter into any agreement for the obligations sale, disposition or encumbrance of any other Person of the Assets, or dedicate, sell, encumber or dispose of any oil and gas production, except in the ordinary course of business consistent with past practices and on a contract which is terminable on not more than thirty (30) days’ notice except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or production sold under a contract listed on Exhibit A-3;
(v) make not agree to any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 alterations in the aggregate or, by any means, make any acquisition of, contracts included in or investment in, assets or stock relating to a material portion of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, the Assets or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for material new contracts relating to the Assets (aother than contracts terminable on not more than thirty (30) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (bdays’ notice) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planwithout Purchaser’s written consent;
(evi) neither maintain in force all insurance policies covering the Assets;
(vii) maintain the Leases in full force and effect and comply with all express or implied covenants contained therein (provided that this covenant shall not be deemed to expand Seller’s title warranties beyond those expressly contained in this Agreement);
(viii) furnish Purchaser with copies of all AFEs in excess of one hundred thousand dollars ($100,000.00), net to Seller’s interest, received or issued by Seller prior to the Closing;
(ix) not liquidate, dissolve, recapitalize or otherwise wind up its business in any respect as it nor any of relates to or affecting the Assets;
(x) not change its Subsidiaries shallaccounting methods, policies or practices, in each case as it relates to the Assets, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by itapplicable law;
(fxi) neither it nor not cancel or waive any claims or rights of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicesvalue;
(gxii) neither it nor any of its Subsidiaries shall not commence, settle or compromise propose to settle any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claimsProceedings related to the Assets;
(hxiii) neither it nor not take any action, or fail to take any action, which action or failure to act will or could reasonably be expected to lead to the termination or material modification of its Subsidiaries shall make any Tax election or permit any insurance policy naming it permits necessary to operate the Assets as a beneficiary or loss- payable payee to be canceled or terminatedpresently conducted;
(ixiv) neither it nor any of its Subsidiaries shall not agree, whether in writing or otherwise, to take any action or omit to take any action that would inconsistent with the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement, from and after the date of this Agreement, until Closing, Seller shall:
(i) provide Purchaser with access (or, where Seller is not an operator, use its commercially reasonable efforts to arrange for access) to the Assets for inspection thereof at the sole cost, risk and expense of Purchaser;
(ii) use reasonable efforts to obtain any and all necessary consents, waivers (including waiver of preferential purchase rights), permissions and approvals of third parties or governmental authorities in connection with the sale and transfer of the Assets other than approvals of federal lease assignments to Purchaser;
(iii) cause to be filed all reports required to be filed by Seller with governmental authorities relating to the Assets;
(iv) provide prompt notice to Purchaser of any notice received by Seller of a default, claim, obligation or suit which affects any of its representations and warranties herein to become untrue in any material respectthe Assets; and
(jv) neither it nor promptly notify Purchaser of any of its Subsidiaries will authorize event, condition, or enter into any agreement to do occurrence which results in any of the foregoingrepresentations and warranties made herein to be untrue.; and
(vi) carry on its business, in the ordinary course, substantially as presently conducted and substantially consistent with past practice and use commercially reasonable efforts to maintain and preserve intact the business organization
Appears in 1 contract
Sources: Purchase and Sale Agreement
Interim Operations. The (a) Subject to Section 6.1.A., the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, that after the date hereof Second Amendment Date and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(bii) it the Company shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charterarticles of incorporation or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock (other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.255 per Share and regular quarterly cash dividends on the preferred and preference stock of its Subsidiaries); or (vE) repurchase, redeem or otherwise acquire (except for (I) mandatory sinking funds obligations existing on the date hereof and (II) open market repurchases pursuant to the terms of the Company's Direct Stock Purchase Plan and Dividend Reinvestment Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it the Company nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than (I) Shares issuable pursuant to Company Options options and other rights outstanding on the date hereofhereof under the Stock Plans, issuances of additional options or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans and issuances of Shares pursuant to options granted after the date hereof pursuant to the Stock Plans and (II) Shares issuable pursuant to the terms of the outstanding Feline Prides); (iiB) (I) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its coal fines property or assets, or, (II) except as identified on Section 6.1(a)(iii) of the Company Disclosure Letter, other than in the ordinary and usual course of business consistent with past practicesand other than sales not in excess of $10,000,000 in the aggregate or $1,000,000 in respect of any transaction or series of related transactions, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)assets; (iiiC) assumemake or authorize or commit for any capital expenditures or operation and maintenance expenditures in excess of 100% of those contemplated to be spent pursuant to the year 1999, guarantee, endorse 2000 or otherwise become liable or responsible (whether directly, contingently or otherwise2001 capital appropriations/spending budgets set forth in Section 6.1(a) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)Disclosure Letter; or (vD) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of, or other interest in, any other Person or entity in excess of $10,000,000 in the aggregate or $3,000,000 in respect of any other Persontransaction or series of related transactions;
(div) except as may be required to comply with applicable law or by existing contractual commitmentsset forth in Section 6.1(a)(iv) of the Company Disclosure Letter, neither it the Company nor any of its Subsidiaries shall (iA) enter into accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates consistent with past practice or (B) change any new agreements significant accounting principle, practice or commitments for any severance or termination pay tomethod, or enter into any employment or severance agreement with, except to the extent required by U.S. GAAP as advised by the Company's regular independent accountants and after consultation with Parent;
(v) neither the Company nor any of its directors, officers Subsidiaries shall take or employees fail to take any action that is reasonably likely to make any representation or consultants except for (a) specific arrangements with 13 warranty of the Company's employeesCompany contained herein inaccurate in any material respect at, including one or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect;
(vi) except as required by applicable Law, an existing collective bargaining agreement or other Contract identified in Section 6.1(a)(vi) of the Company Disclosure Letter, neither the Company nor any of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans (other than issuances of additional options, performance shares or increase or accelerate rights to acquire Shares granted pursuant to the salary, wage, bonus or other compensation terms of any employees or directors (except for increases occurring the Stock Plans as in effect on the date hereof in the ordinary and usual course of businessthe operation of such Stock Plans, which provided, that any such additional options, performance shares or rights to acquire Shares shall include normal periodic performance reviews not vest in connection with the Merger and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or the other employee benefit not required transactions contemplated by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.this Agreement),
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time (unless Parent shall otherwise approve in writing, which approval in the case of clauses (c)(ii), (c)(iv), (c)(vi), (e), (f) and (k) below shall not be unreasonably withheld withheld, delayed or delayed, conditioned and except as otherwise expressly contemplated permitted or required by this AgreementAgreement or described in Section 6.1 of the Company Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary course and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatespractice;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly propose to Parent amend the Offer Company Charter or the MergerCompany Bylaws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock or any class thereof; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than (A) dividends from its direct or indirect wholly-owned Subsidiaries to the Company, or (B) dividends payable on the Series C Preferred Shares pursuant to and in accordance with the existing terms thereof; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Common Shares issuable pursuant to Company Options outstanding on the date hereofhereof under the Stock Plans as set forth in Section 5.1(b) of the Company Disclosure Letter); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell sell, mortgage, pledge, dispose of, or otherwise dispose of encumber or subject suffer to exist any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability Encumbrance (except for additional borrowings Permitted Encumbrances) in respect of, any assets in excess of $250,000 in the ordinary course under lines aggregate other than (A) sales of credit inventories (and/or licenses in existence on the date hereof); (iiiconnection therewith) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices practice and except (B) dispositions of obsolete or worthless assets; (iii) incur any indebtedness for obligations borrowed money other than borrowings (including issuance of Subsidiaries letters of credit) and reborrowings under its or any of its Subsidiaries' credit facilities, as such credit facilities are in existence as of the date hereof without regard to any subsequent amendment or modification, that would at any given time cause the net funded amount of indebtedness outstanding under such credit facilities to be in excess of $4,000,000 in the aggregate (the "Maximum Amount"); provided, however, that the Company may incur indebtedness under such credit facilities in excess of the Maximum Amount to the extent that the senior management of the Company incurred reasonably determines that it is in the best interests of the Company to borrow such additional amounts in order to fund operations of the business of the Company and its Subsidiaries in the ordinary course of businesscourse; and provided, further that prior to taking any actions permitted by the foregoing proviso the Company shall give Parent three Business Days' prior written notice that it intends to take such actions; (iv) make or commit for any loans capital expenditures in the aggregate in excess of the Company's budget for capital expenditures, in each case, for the applicable fiscal year; (v) loan, advance funds or make any investment in or capital contribution to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)any Subsidiary; or (vvi) make any commitments foracquire (by merger, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition ofconsolidation, or investment in, assets acquisition of stock or stock of assets) any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, modify any Company Compensation and Benefit Plan Plans in a manner that would materially increase benefits thereunder or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for salary increases as a result of employee promotions occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planbusiness consistent with past practices;
(e) neither it nor any of its Subsidiaries shallshall (i) settle or compromise any material claims or litigation in excess of $250,000 in the aggregate other than (A) settlements and compromises in the ordinary course of business and (B) settlements and compromises of liabilities not in excess of $500,000 reflected or reserved against on the financial statements included in the Company Reports; or (ii) waive, except as may be required release or assign any material rights or claims in excess of $250,000 in the aggregate other than in the ordinary course of business; provided, however, that the Company shall not settle any Governmental claims or proceedings if such settlement would result in suspension, debarment or injunctive relief that is material to the businesses of the Company and its Subsidiaries taken as a result of a change in law whole or in GAAP, change any of the accounting principles or practices used by itthat would otherwise materially affect Parent and its Affiliates;
(f) neither it nor any of its Subsidiaries shall make any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, extend or waive any applicable statute of limitations with respect to Taxes, enter into any closing agreement in respect of any material Tax claim, audit or assessment, surrender any right to claim a material Tax refund, offset or other reduction in a material Tax liability or settle or compromise any material Tax liability;
(g) use commercially reasonable efforts to (i) preserve intact its business organization and goodwill, (ii) keep available the services of its present officers and key employees and (iii) preserve the goodwill and business relationships with customers, suppliers and others having business relationships with Company;
(h) use commercially reasonable efforts to maintain with financially responsible insurance companies insurance on its tangible assets and its business in such amounts and against such risks and losses as are consistent with past practice;
(i) not enter into any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its Subsidiaries (other than the transactions contemplated by this Agreement);
(j) not alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure or ownership of any of Company's Subsidiaries;
(k) except as required by GAAP or as recommended in writing by the Company's independent auditors, (i) not revalue in any material respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, receivables other than in the ordinary course of business consistent with past practicespractice, or (ii) change any method of accounting or accounting principles or practice;
(gl) neither it nor not (i) grant any material severance, retention or termination pay to, or amend in any material respect any existing severance, retention or termination arrangement with, any current or former director, officer or employee of Company or any of its Subsidiaries, (ii) except to the extent required under Contracts existing as of the date hereof, increase in any material respect or accelerate in any material respect the payment or vesting of, any benefits payable under any existing severance, retention or termination pay policies or employment agreements, (iii) enter into or amend in any material respect any employment, consulting, deferred compensation or other similar agreement with any director, officer, consultant or employee of Company or any of its Subsidiaries shall settle or compromise (iv) establish, adopt or amend (except as required by applicable law) any material claims collective bargaining agreement, bonus, profit-sharing, thrift, pension, retirement, post-retirement medical or litigation life insurance, retention, deferred compensation, compensation, stock option, restricted stock or terminate other benefit plan or materially amend arrangement covering any present or modify former director, officer or employee, or any beneficiaries thereof, of Company or any of its material Contracts or waive, release or assign any material rights or claims;Subsidiaries; or
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jm) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing, or commit to any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Meggitt USA Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
): (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
; (b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws by-laws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; the Rights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockStock other than the issuance of Rights in connection with the issuance of Capital Stock upon the exercise of Company Options; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock Stock; or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
; (c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof, the grant of Company Options to newly hired employees in accordance with a benefit matrix previously provided to Parent and after notification of Parent and automatic grants of director stock options as mandated by the Company's First Amended 1988 Nonqualified Stock Option Plan for Outside Directors); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations 16 22 of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 150,000 individually and $250,000 3,000,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
; (d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 ten of the Company's employees, including employees and one of its directors, directors which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
; (e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
; (f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
; (g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
; (h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
; (i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
and (j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after Parties agree during the period commencing on the date hereof and prior to of this Agreement through the Effective Time Closing Date or termination of the Agreement under Article VIII (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it , including any Exhibits and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andSchedules hereto, or to the extent consistent therewiththat the Parties shall otherwise agree in writing), it Stonepath and its Subsidiaries Seller will cause the Company:
(1) To carry on the Business in the Ordinary Course of Business and Seller and Stonepath shall use all commercially reasonable efforts to preserve intact its present business organization intact organization, keep available the services of its present officers and maintain employees and preserve its existing relations and goodwill relationships with customers, suppliers, distributors, creditors, lessors, employees suppliers and others having business associates;dealings with it.
(b2) it shall not, Not to (ia) issue, sell purchase or otherwise dispose of or subject to Lien (other than Permitted Liens) redeem any shares of its Subsidiaries' Capital Stock owned by itcapital stock; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iiib) split, combine or reclassify any of its outstanding capital stock or issue, authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of Capital Stockits capital stock; (ivc) declareredeem, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem repurchase or otherwise acquire or permit any shares of its Subsidiaries capital stock; or (d) otherwise change its capitalization.
(3) Except as contemplated by this Agreement, not to sell, issue, pledge, authorize or propose the sale or issuance of, pledge or purchase or otherwise acquirepropose the purchase of, any shares of its Capital Stock capital stock of any class or any securities convertible into into, or exchangeable rights, warrants or exercisable for options to acquire, any such shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;convertible securities.
(c4) neither it nor any Not to amend its amended and restated articles of incorporation or its Subsidiaries shall amended and restated bylaws.
(i5) authorize for issuance or issueNot to sell, sell lease, pledge, encumber or otherwise dispose of or subject agree to sell, lease, pledge, encumber or otherwise dispose of, any of its assets that are material to the Company's Business or any other assets except in the Ordinary Course of Business and in no event amounting in the aggregate to more than $50,000.
(6) Not to incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the Company or guarantee any debt securities of others other than in the Ordinary Course of Business and in no event amounting in the aggregate to more than $25,000, except for indebtedness to the Laurus Master Fund Ltd.
(7) Not to make any capital expenditures in excess of $25,000 in the aggregate.
(8) Not to accelerate the collection of its accounts receivable or delay the payment of its accounts payable or other liabilities, in each case arising out of the operation of the Business in a manner which would be inconsistent with past practice.
(9) Not to adopt or amend in any material respect any collective bargaining agreement or Employee Benefit Plan.
(10) Except for (a) payment of bonuses (i) described in Stonepath's Schedules; (ii) included in the Financial Statements; or (iii) accrued for the months since the last Financial Statements, and (b) wage increases or raises to non-officer or director employees, not to grant to any Lien employees any increase in compensation or in severance or termination pay (other than Permitted Lienspursuant to the agreements listed in Section 3.3 of Stonepath's Schedules), enter into any employment agreement with any employee, or grant, pay or accrue to an employee, any bonus or incentive compensation.
(11) Not to acquire (by merger, consolidation or acquisition of stock or assets or otherwise) any shares ofcorporation, partnership or other business organization or subdivision thereof, or securities convertible into make any investment by either purchase of stock or exchangeable securities, contributions to capital, property transfer or, except in the Ordinary Course of Business, purchase of any property or exercisable forassets, of any other individual or entity.
(12) Not to make any Material Tax election or settle or compromise any Material Tax liability.
(13) Not to waive, release, grant or transfer any rights of material value or modify or change in any Material respect any Material Contract other than in the Ordinary Course of Business.
(14) Not to take any action, or optionsfail to take any action, warrantsthat is not in the Ordinary Course of Business that is reasonably likely to result in any of the representations and warranties of Stonepath, callsSeller, commitments or rights of and Company set forth in this Agreement becoming untrue in any kind Material respect.
(15) To maintain in full force and effect all insurance coverages for its properties and assets substantially comparable to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding coverages existing on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;.
(d16) except as may be required Not to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;contract with a Related Person.
(e17) neither To observe corporate governance procedures between it nor any and ▇▇▇▇▇ ▇▇▇▇▇ (who oversees the Company and is also an investor and President of its Subsidiaries shallPurchaser), except as that may be required as a result necessary to avoid any conflict of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoinginterest arising from this Agreement.
Appears in 1 contract
Interim Operations. The Company (a) Weblink covenants and agrees as to itself ------------------ and its Subsidiaries that, from and after the date hereof of this Agreement and prior to the Effective Time (unless Parent Metrocall shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement, disclosed in the Weblink Disclosure Letter, or required by applicable Law (including any orders of the Weblink Bankruptcy Court)):
(ai) It shall conduct its business and the business of it and its Subsidiaries shall be conducted only in the ordinary and usual course consistent with past practices of business and, to the extent consistent therewith, it and its Subsidiaries shall use all commercially reasonable efforts to preserve its their respective business organization organizations and assets intact and maintain its their respective existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it It shall not, : (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in with respect of to any Capital Stockcapital stock; or (vD) repurchase, redeem or otherwise acquire acquire, except in connection with existing commitments under Weblink Stock Plans but subject to Weblink's obligations under subparagraph (iii) below, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolutioninto, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); capital stock;
(iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither Neither it nor any of its Subsidiaries shall ERISA Affiliates shall: (iA) enter into any new agreements accelerate, amend or commitments for any severance change the period of exercisability of or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend of stock-based compensation or otherwise modify, other benefits under any Compensation and Benefit Plan Plans; (B) amend or otherwise modify any Compensation and Benefit Plan; or (C) increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or key employees, in each case except: (w) changes in compensation and benefits in an amount in the aggregate not exceeding $300,000; (x) for grants or awards to directors, officers and employees of it or directors its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice; (except for increases occurring y) in the ordinary and usual course of business, its business (which shall may include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing increases and the provision of individual Weblink Compensation and Benefit PlanPlans consistent with past practice for promoted or newly hired officers and employees on terms consistent with past practice); or (z) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date of this Agreement;
(eiv) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither Neither it nor any of its Subsidiaries shall revalue in incur, repay or retire prior to maturity or refinance any respect indebtedness for borrowed money or guarantee any such indebtedness or issue, sell, repurchase or redeem prior to maturity any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of its material assetsothers, including writing down the value except (A) for any refinancing of inventory such indebtedness or writing-off notes or accounts receivable, other than debt securities on terms no less favorable in the ordinary course of business consistent with past practicesaggregate to Weblink or (B) the DIP Financing (defined below), in each case which would not prevent, materially delay or materially impair Weblink's ability to consummate the transactions contemplated by this Agreement or the Weblink Prearranged Plan;
(gv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither Neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedcapital expenditures in an aggregate amount in excess of $54,000,000 after January 1, 2001;
(ivi) Neither it nor any of its Subsidiaries shall issue, deliver, sell, pledge or encumber shares of any class of its capital stock or any securities convertible or exchangeable into, or any rights, warrants or options to acquire, or any bonds, debentures, notes, or other debt obligations having the right to vote or that are convertible or exercisable for, any such shares, except Weblink may issue Weblink Common Stock in exchange for indebtedness or debt securities pursuant to clause (iv) above;
(vii) Except as permitted under Section 6.2 or in connection with the exercise of its termination right under Section 8.4(b), neither it nor any of its Subsidiaries shall take authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, (A) any action merger, consolidation or omit to take business combination (other than the Merger), or (B) any action that would cause purchase, sale, lease, license or other acquisition or disposition of any business or of a material amount of assets or securities, except for in the case of clause (B) (x) transactions entered into in the ordinary course of its representations and warranties herein to become untrue business, or (y) any acquisition of assets or any investment having a cash purchase price of $5,000,000 or less in any single instance and $10,000,000 or less in the aggregate, or (z) any sale of assets having a sale price, individually or in aggregate, in excess of $5,000,000, in each case where such acquisition, investment or sale would not prevent, materially delay or materially impair Weblink's ability to consummate the transactions contemplated by this Agreement or the Weblink Prearranged Plan;
(viii) Weblink shall not make any material respectchange in its accounting policies or procedures, other than any such change that is required by GAAP;
(ix) Weblink shall not release, assign, settle or compromise any material claims or litigation in excess of $500,000 (unless the full amount of any such settlement or compromise shall be payable under Weblink's insurance policies) or make any material Tax election or settle or compromise any material federal, state, local or foreign Tax liability; and
(jx) neither Neither it nor any of its Subsidiaries will shall authorize or enter into any agreement to do any of the foregoing.
(b) Metrocall covenants and agrees as to itself and its Subsidiaries that, from and after the date of this Agreement and prior to the Effective Time (unless Weblink shall otherwise approve in writing and except as otherwise expressly contemplated by this Agreement, disclosed in the Metrocall Disclosure Letter, or required by applicable Law (including any orders of the Metrocall Bankruptcy Court):
(i) Its business and the business of its Subsidiaries shall be conducted only in the ordinary course of business and, to the extent consistent therewith, it and its Subsidiaries shall use all commercially reasonable efforts to preserve their respective business organizations and assets intact and maintain their respective existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(ii) It shall not: (A) amend its certificate of incorporation or bylaws; (B) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend payable in cash, stock or property with respect to any capital stock, except for a dividend that would be received by holders of Weblink Common Stock on an equivalent post-Merger basis per share of Metrocall Common Stock after the Effective Time; or (D) repurchase, redeem or otherwise acquire, except in connection with existing commitments under Metrocall Stock Plans but subject to Metrocall's obligations under subparagraph (iii) below, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into, or exchangeable or exercisable for, any shares of its capital stock;
(iii) Neither it nor any of its ERISA Affiliates shall: (A) accelerate, amend or change the period of exercisability of or terminate, establish, adopt, enter into, make any new grants or awards of stock-based compensation or other benefits under any Compensation and Benefit Plans; (B) amend or otherwise modify any Compensation and Benefit Plan; or (C) increase the salary, wage, bonus or other compensation of any directors, officers or key employees, in each case except: (w) changes in compensation and benefits in an amount in the aggregate not exceeding $300,000; (x) for grants or awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice; (y) in the ordinary course of its business (which may include normal periodic performance reviews and related compensation and benefit increases and the provision of individual Metrocall Compensation and Benefit Plans consistent with past practice for promoted or newly hired officers and employees on terms consistent with past practice); or (z) for actions necessary to satisfy existing contractual obligations under its Compensation and Benefit Plans existing as of the date of this Agreement;
(iv) Neither it nor any of its Subsidiaries shall incur, repay or retire prior to maturity or refinance any indebtedness for borrowed money or guarantee any such indebtedness or issue, sell, repurchase or redeem prior to maturity any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, except for any refinancing of such indebtedness or debt securities on terms no less favorable in the aggregate to Metrocall and which would not prevent, materially delay or materially impair Metrocall's ability to consummate the transactions contemplated by this Agreement or the Metrocall Prearranged Plan;
(v) Neither it nor any of its Subsidiaries shall make any capital expenditures in an aggregate amount in excess of $92,000,000 after January 1, 2001;
(vi) Neither it nor any of its Subsidiaries shall issue, deliver, sell, pledge or encumber shares of any class of its capital stock or any securities convertible or exchangeable into, or any rights, warrants or options to acquire, or any bonds, debentures, notes, or other debt obligations having the right to vote or that are convertible or exercisable for, any such shares, except Metrocall may issue Metrocall Common Stock issued in exchange for indebtedness or debt securities pursuant to clause (iv) above;
(vii) Except as permitted under Section 6.2or in connection with the exercise of its termination right under Section 8.5(b), neither it nor any of its Subsidiaries shall authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, (A) any merger, consolidation or business combination (other than the Merger), or (B) any purchase, sale, lease, license or other acquisition or disposition of any business or of a material amount of assets or securities, except for in the case of clause (B) (x) transactions entered into in the ordinary course of its business, or (y) any acquisition of assets or any investment having a cash purchase price of $5,000,000 or less in any single instance and $10,000,000 or less in the aggregate, or (z) any sale of assets having a sale price, individually or in aggregate, in excess of $5,000,000 in each case where such acquisition, investment or sale would not prevent, materially delay or materially impair Metrocall's ability to consummate the transactions contemplated by this Agreement or the Metrocall Prearranged Plan;
(viii) Metrocall shall not make any material change in its accounting policies or procedures, other than any such change that is required by GAAP;
(ix) Metrocall shall not release, assign, settle or compromise any material claims or litigation in excess of $500,000 (unless the full amount of any such settlement or compromise shall be payable under Metrocall's insurance policies) or make any material Tax election or settle or compromise any material federal, state, local or foreign Tax liability; and
(x) Neither it nor any of its Subsidiaries shall authorize or enter into any agreement to do any of the foregoing. As used herein, "ordinary course of business" (1) prior to the commencement of the Bankruptcy Cases, means the ordinary course of business of a Person consistent with such Person's past custom and practice (including with respect to quantity and frequency); provided that (A) actions taken by a Person contemplated by this Agreement, including the commencement of the Bankruptcy Cases, and (B) applicable only to the term as used in Sections 6.1(a)(i) and 6.1(b)(i) of this Agreement, any and all actions taken while such Person operated as a distressed company prior to and following the commencement of its Bankruptcy Cases shall not be deemed for any purposes of this Agreement to constitute actions not in the ordinary course of business and (2) following the commencement of the Bankruptcy Cases, shall have the same meaning as in the Bankruptcy Code.
Appears in 1 contract
Sources: Restructuring and Section 303 Agreement (Weblink Wireless Inc)
Interim Operations. (a) The Company covenants and agrees the Stockholders covenant and agree as to itself ------------------ the Company and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve grant prior approval in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by stated in this Agreement):
(ai) the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it the Company and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its their business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it the Company shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) other than as set forth in Section 6.9, declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it the Company nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (Debt, other than Shares issuable pursuant to Company Options the valid exercise of currently outstanding on the date hereof); options or warrants, (iiB) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)liability; or (vC) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually and $250,000 200,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other PersonPerson or entity other than raw materials and inventory in the ordinary course of business;
(div) except as may be required to comply with applicable law or by existing contractual commitments, neither it the Company nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Company Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planemployees;
(ev) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it Company nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it the Company nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ivii) neither it the Company nor any of its Subsidiaries shall make or change any Tax election, obtain or request any private letter ruling, closing agreement or similar ruling or agreement with respect to Taxes or change any method of tax accounting;
(viii) neither the Company nor any of its Subsidiaries shall knowingly take any action or omit to take any action that would be reasonably likely to cause any of its representations and warranties herein to become untrue untrue;
(ix) neither the Company nor any of its Subsidiaries shall account for, manage, or treat accounts receivable, inventory or customer credits in any material respectmanner other than in the ordinary course of business, or (without limiting the generality of the foregoing) write off as uncollectible any notes or accounts receivable or write down the value of any inventory other than in the ordinary course of business;
(x) neither the Company nor any of its Subsidiaries shall (A) amend, terminate or enter into any Contract that is not a Material Contract except in the ordinary and usual course of the Company's or its Subsidiaries' business consistent with past practices or (B) amend, terminate or enter into any Material Contract; and
(jxi) neither it the Company nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent and Merger Sub agree that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise grant prior approval in writing and except as otherwise expressly stated in this Agreement) neither Parent nor Merger Sub shall knowingly take any action or omit to take any action that would be reasonably likely to cause any of its representations and warranties herein to become untrue.
Appears in 1 contract
Sources: Merger Agreement (Moore Wallace Inc)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent SBC shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement, disclosed in the Company Disclosure Letter or required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its chartercertificate of incorporation or by-laws or amend, bylaws ormodify or terminate the Rights Agreement; provided, except for any amendment which will however, that nothing in this Agreement shall prevent the Company from reducing below 20% the beneficial ownership threshold in the definition of an Acquiring Person (as defined in the Rights Agreement) or extending the Final Expiration Date of the Rights Agreement (as defined therein) or adopting a new rights agreement having substantially similar terms as the Rights Agreement and not hinderinconsistent with (x) this proviso, delay (y)Section 5.1(o) (assuming references therein are to such a new rights agreement) or make more costly to Parent (z) the Offer or the Mergertransactions contemplated by this Agreement; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any Capital Stockcapital stock, other than regular quarterly cash dividends in amounts consistent with its past practice or rights to purchase Company Shares or Company Preference Shares pursuant to any successor agreement to the Rights Agreement, adopted in accordance with the terms of this Agreement; or (vD) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, except in open market transactions in connection with the Company Stock Plans, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or capital stock, but subject to the Company's obligations under subparagraph (viiii) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;below.
(ciii) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall knowingly take any action that would prevent the Merger from qualifying for "pooling of interests" accounting treatment or omit to take any action as a "reorganization" within the meaning of Section 368(a) of the Code or that would cause any of its representations and warranties herein to become untrue in any material respect; and;
(jiv) neither it nor any of its Subsidiaries will authorize shall terminate, establish, adopt, enter into, make any new grants or enter into awards of stock-based compensation or other benefits under, amend or otherwise modify, any Company Compensation and Benefit Plans or increase the salary, wage, bonus or other compensation of any directors, officers or key employees except (A) for grants or awards to directors, officers and employees of it or its Subsidiaries under existing Company Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (B) in the normal and usual course of business (which shall include normal periodic performance reviews and related Company Compensation and Benefit Plan increases and the provision of individual Company Compensation and Benefit Plans consistent with past practice for promoted or newly hired officers and employees and the adoption of Company Compensation and Benefit Plans for employees of new Subsidiaries in amounts and on terms consistent with past practice); provided, that in no event shall it institute a broad based change in compensation, unless it shall have used its reasonable best efforts to provide SBC with prior notice of any such change or, if the Company was unable to provide such prior notice, the Company shall provide SBC with notice as soon as practicable following any such change, or (C) for actions necessary to satisfy existing contractual obligations under Company Compensation and Benefit Plans existing as of the date hereof;
(v) neither it nor any of its Subsidiaries shall issue any Company Preferred Shares or Company Preference Shares or incur any indebtedness for borrowed money or guarantee any such indebtedness if it should reasonably anticipate that after such incurrence any of its or any of its Subsidiaries' outstanding senior indebtedness would be rated A or lower by Standard & Poor's;
(vi) neither it nor any of its Subsidiaries shall make any capital expenditures in any period of twelve consecutive months following the date hereof in an aggregate amount in excess of 150% of the aggregate amount reflected in the Company's capital expenditure budget for such year, a copy of which has been provided to SBC;
(vii) neither it nor any of its Subsidiaries shall transfer, lease, license, sell, mortgage, pledge, encumber or otherwise dispose of any of its or its Subsidiaries property or assets (including capital stock of any of its Subsidiaries) with a fair market value in excess of $1 billion in the aggregate in any period of twelve consecutive months following the date hereof except for transfers, leases, licenses, sales, mortgages, pledges, encumbrances, or other dispositions in the ordinary course of business consistent with past practice;
(viii) neither it nor any of its Subsidiaries shall issue, deliver, sell, or encumber shares of any class of its common stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares except, (A) any such shares issued pursuant to options and other awards outstanding on the date hereof under the Company Stock Plans, awards of options and other awards granted hereafter under the Company Stock Plans in accordance with this Agreement and shares issuable pursuant to such awards, and (B) up to an aggregate amount of $3.6 billion of such shares, securities, rights, warrants or options (valued at their fair market value as of the date of the agreement to do make such acquisition) in any period of twelve consecutive months following the date hereof to fund, in whole or in part, the cost of any acquisition or acquisitions permitted under clause (ix) below following reasonable notice to SBC of its intention to take such action;
(ix) neither it nor any of its Subsidiaries shall spend in excess of $3.6 billion in the aggregate in any period of twelve consecutive months following the date hereof to acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition); provided, that no such acquisition would prevent, materially delay or materially impair its ability to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing., neither it nor any of its Subsidiaries shall acquire any business the acquisition of which would subject SBC and its Subsidiaries following the consummation of the Merger to any Commercial Mobile Radio Service spectrum aggregation limit restriction pursuant to the provisions of 47 C.F.R. Section 20.6 or place SBC and its Subsidiaries following the consummation of the Merger in violation of the Cellular Cross Ownership
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) and except as required by applicable Laws, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of the foregoing, and in furtherance thereof, from the date hereof until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not and shall not permit its Subsidiaries to:
(i) adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(bii) it shall not, (i) issue, sell merge or otherwise dispose of consolidate the Company or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws orSubsidiaries with any other Person, except for any amendment which will not hindersuch transactions among wholly-owned Subsidiaries of the Company, delay or make more costly to Parent the Offer restructure, reorganize or the Merger; completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) splitacquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $100,000 in any transaction or series of related transactions, combine or reclassify its outstanding shares other than acquisitions pursuant to Contracts in effect as of Capital Stock; the date hereof;
(iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable forgrant, transfer, encumber, or optionsauthorize the issuance, warrantssale, callspledge, commitments or rights of any kind to acquiredisposition, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practicesgrant, transfer, lease, license, guarantee, sell or otherwise dispose encumbrance of, any shares of capital stock of the Company or subject to any Lien of its Subsidiaries (other than Permitted Liensthe issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), 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, except pursuant to the exercise of Warrants or Options as contemplated by this Agreement;
(v) any other property or assets create or incur any Lien material to the Company or modify any material indebtedness or other liability (except for additional borrowings of its Subsidiaries not incurred in the ordinary course under lines of credit business consistent with past practice;
(vi) make any loans, advances, guarantees or capital contributions to or investments in existence on any Person (other than the date hereof)Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $100,000 in the aggregate;
(vii) (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary; (iiiB) assumerepurchase, guarantee, endorse redeem or otherwise become liable reacquire any shares of capital stock or responsible (whether directlyother securities, contingently or otherwise) for subdivide, reclassify, recapitalize, split, combine or exchange or enter into any similar transaction with respect to any of its capital stock or other securities or issue or authorize or propose the obligations issuance of any other Person securities in respect of, in lieu of or in substitution for shares of its capital stock or other securities, except for any split, combination or reclassification of capital stock of a wholly-owned Subsidiary of the Company, or any issuance or authorization or proposal to issue or authorize any securities of a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company, or (C) enter into any agreement with respect to the voting of its capital stock;
(viii) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices and not to exceed $100,000 in the aggregate;
(ix) except for obligations of Subsidiaries as set forth in the capital budgets set forth in Section 6.1(i)(ix) of the Company incurred Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $200,000 in the aggregate
(x) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xi) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles or as recommended by the Company’s independent public auditors;
(xii) settle any actions, suits, claims, hearings, arbitrations, investigations or other proceedings before a Governmental Entity for an amount in excess of $100,000 or any obligation or liability of the Company in excess of such amount;
(xiii) amend, modify or terminate any Material Contract, or cancel, modify or waive any material debts or claims held by it or waive any material rights;
(xiv) (A) make, change, or rescind any material Tax election, (B) file any material amended Tax Return of the Company or any of the Subsidiaries, (C) or adopt or change any material method or period of Tax accounting, (D) settle or compromise any material claim relating to Taxes; (E) surrender any claim for a refund of Taxes; (F) enter into any closing agreement relating to Taxes; (G) file any material Tax Return that is inconsistent with past practice; (H) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business; );
(ivxv) make transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any loans to any other Person (other than to Subsidiaries assets, licenses, operations, rights, product lines, businesses or interests therein of the Company oror its Subsidiaries, customary loans or advances to employees including capital stock of any of its Subsidiaries, except in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees services provided in the ordinary course of business and consistent sales of obsolete assets and except for sales, leases, licenses or other dispositions of assets with past practicesa fair market value not in excess of $100,000 in the aggregate, other than pursuant to Contracts in effect prior to the date hereof;
(xvi) assign or grant an exclusive license of any material right in any Intellectual Property of the Company necessary or useful for the manufacture, use, sale, offer for sale or export of any Medical Device or that otherwise enables a third party to compete with the Company with respect to the manufacture or sale of any product that competes with any Medical Device;
(xvii) except as required pursuant to existing written, binding agreements in effect prior to the date hereof, as set forth in Section 5.1(h)(i) of the Company Disclosure Letter, or as otherwise required by applicable Law, (iiA) terminategrant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (B) increase in any manner the compensation, bonus, pension, welfare, fringe, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (C) become a party to, establish, adopt, enter into, make any new grants or awards undercommence participation in, amend or otherwise modify, terminate any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus stock option plan or other stock-based compensation of plan, or any employees or directors (except for increases occurring in the ordinary and usual course of businesscompensation, which shall include normal periodic performance reviews and related compensation and benefit increasesseverance, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance retirement, profit-sharing, welfare benefit, or other employee benefit not required by plan or agreement with or for the benefit of any existing Compensation and current or former directors, officers, employees or consultants of the Company or its Subsidiaries (or newly hired employees) or amend the terms of any outstanding equity-based awards, (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan;
, to the extent not already provided in any such Benefit Plan, (eE) neither it nor enter into any of its Subsidiaries shallcollective bargaining agreement or other agreement with a labor union, works council or similar organization, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required as a result of a change in law by GAAP; or in GAAP(vii) forgive any loans or issue any loans to directors, change any officers or employees of the accounting principles Company or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;Subsidiaries.
(gxviii) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause reasonably be expected to result in any of its representations and warranties herein the Tender Offer Conditions or the conditions to become untrue the Merger set forth in any material respectArticle VIII not being satisfied; andor
(jxix) neither it nor any of its Subsidiaries will agree, authorize or enter into any agreement commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Transactions, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time (but in any event no more than three (3) business days) to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) Parent shall not knowingly take or permit any of its Subsidiaries to take any action that would reasonably be expected to prevent the consummation of the Merger.
(d) The Company shall (i) consult with Parent in connection with any proposed meeting with the FDA or any other Governmental Entity relating to any Medical Device, (ii) promptly inform Parent of, and provide Parent with a reasonable opportunity to review, any material filing proposed to be made by or on behalf of any of the Company or any of its Subsidiaries, and any material correspondence or other material communication proposed to be submitted or otherwise transmitted to the FDA or any other Governmental Entity by or on behalf of any of the Company or any of its Subsidiaries, (iii) keep Parent promptly informed of (A) any communication (written or oral) with or from the FDA and any other Governmental Entity and (B) any material communications (written or oral) received from any Person relating to the Intellectual Property of the Company, (iv) promptly inform Parent and provide Parent or Merger Sub with a reasonable opportunity (but no more than three (3) business days) to comment, in each case, prior to making any material change to any study protocol, adding any new trial, making any material change to a manufacturing plan or process, making any material change to a development timeline or initiating, or making any material change to, promotional or marketing materials or activities relating to any Medical Device, and (v) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s compliance with any and all relevant Laws, compliance programs, and procedures, and give due consideration to any resulting recommendations provided by Parent’s representative.
Appears in 1 contract
Interim Operations. The (a) Except as set forth in Section 6.1 of the Company Disclosure Schedule, the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement or the Stock Option Agreement):
(ai) the business of it and its Subsidiaries Subsidiaries' businesses shall be conducted in the ordinary and usual course consistent with past practices andcourse; it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, to product extension or otherwise) the extent consistent therewith, business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or entering into or engaging in new lines of business;
(ii) it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its their business organization organizations intact and maintain its their existing relations and goodwill with customers, suppliers, distributorsreinsurers, agents, creditors, lessors, providers and regulators, employees and business associates;
(biii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charter, bylaws or, except for certificate of incorporation or by-laws or amend the Rights Agreement or adopt any amendment which will not hinder, delay new rights agreement or make more costly to Parent the Offer or the Mergersimilar agreement; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) authorize, declare, set aside or pay any dividend or other distribution payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries; or (vE) repurchase, redeem or otherwise acquire acquire, except in connection with any of the Company Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentstock;
(civ) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than Shares issuable pursuant to Company Options options or pursuant to stock bonus plans outstanding on the date hereofhereof under any of the Company Stock Plans and options on up to 100,000 Shares granted under the Company Stock Plans after the date hereof to non-executive officers and consistent with prior practice); (iiB) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (liability, except for additional borrowings in the ordinary course under lines immaterial Liens arising by operation of credit in existence on the date hereof)law; (iiiC) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit to any capital expenditures other than in amounts less than $50,000 individually and $250,000 accordance with or pursuant to the summary of the calendar year 1998 capital appropriations/spending budgets in Section 6.1(a)(iv)(C) of the aggregate orCompany Disclosure Letter, by and, during calendar year 1999, shall not make or authorize or commit to any means, capital expenditures in excess of the 1998 capital expenditure limit set forth in Section 6.1(a)(iv)(C) of the Company Disclosure Letter; or (D) make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity in excess of $3 million other than Passive Investments;
(dv) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans except as required by Law or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except increases for increases employees who are not elected officers of the Company occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases), but and if the Merger is not any general across-the-board increases) consummated on or consultants or pay or agree prior to pay any pensionDecember 31, retirement allowance or other employee benefit 1998 and this Agreement is not required by any existing Compensation terminated in accordance with its terms, increases in compensation for elected officers of the Company occurring in the ordinary and Benefit Planusual course of business;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(fvi) neither it nor any of its Subsidiaries shall revalue in pay, discharge, settle or satisfy any respect any of its material assetsclaims, including writing down the value of inventory liabilities or writing-off notes obligations (absolute, accrued, asserted or accounts receivableunasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations in the ordinary and usual course of business consistent with past practicesbusiness;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvii) neither it nor any of its Subsidiaries shall make or change any material Tax election election, settle any audit, file any amended Tax Returns or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminatedterminated except in the ordinary and usual course of business;
(iviii) neither it nor any of its Subsidiaries shall enter into any Contract containing any provision or covenant limiting in any respect the ability of the Company or any of its Subsidiaries or any of their "Affiliates" (as defined in Rule 12b-2 under the Exchange Act) to (A) sell any products or services of or to any other Person, (B) engage in any line of business (including geographic limitations) or (C) compete with or obtain products or services from any Person, or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries or their Affiliates;
(ix) enter into any new reinsurance arrangements;
(x) neither it nor any of its Subsidiaries will terminate, or amend, or modify in any material respect, any Material Company Contract, other than provider Contracts that are terminated or amended or modified in the ordinary and usual course of business and other than renewal of customer Contracts in the ordinary and usual course of business; it being understood that the Company shall use its reasonable best efforts to keep Parent advised of any anticipated termination of or material amendment or modification of any Material Customer Contract or Material Provider Contract and to make available to Parent the Exclusivity Contracts;
(xi) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jxii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) During the period from the date of this Agreement through the Effective Time, (i) as requested by Parent, the Company shall confer on a regular basis with one or more representatives of Parent with respect to material operational matters (including the general status of provider and customer contracts), (ii) upon the knowledge of the executive officers of the Company of any event or occurrence that is reasonably likely to result in a Company Material Adverse Effect, any material litigation or material governmental complaints, investigation or hearings (or communications indicating that the same may be contemplated), the breach in any material respect of any representation, warranty or covenant contained herein, or the failure of any condition precedent to the Merger, the Company shall promptly notify Parent thereof and (iii) upon the knowledge of the executive officers of Parent of any event or occurrence that is reasonably likely to result in a Parent Material Adverse Effect or the failure of any condition precedent to the Merger, Parent shall promptly notify the Company thereof.
(c) Except as disclosed in the Parent Reports filed prior to the date hereof, Parent covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld, and except as otherwise expressly contemplated by this Agreement) that (i) except as set forth in Section 6.1(c) of the Parent Disclosure Schedule, Parent and its Subsidiaries' businesses shall be conducted in the ordinary and usual course; and (ii) Parent shall not authorize, declare, set aside or pay any dividend or other distribution in respect of any capital stock of Parent, other than dividends from its direct or indirect wholly owned Subsidiaries and regular annual dividends of $0.03 per share of the Parent Common Stock.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws certificate of incorporation or by-laws or, except for any amendment which will not hinderamend, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.055 per Share; or (v) repurchase, redeem or otherwise acquire acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than in accordance with the Rights Agreement and other than Shares issuable pursuant to Company Options options and other stock-based awards outstanding on the date hereofhereof under the Stock Plans); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwiseA) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit for any capital expenditures other than capital expenditures (a) in the aggregate amount remaining in the capital appropriations/spending budgets set forth in the Company Disclosure Schedule after deducting amounts previously authorized or committed by the Company with respect to calendar year 2005 and (b) in amounts less than not in excess of $50,000 2 million individually and $250,000 10 million in the aggregate orwith respect to all unbudgeted capital expenditures, or (B) by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other Person or entity for consideration in excess of (a) in the aggregate amount remaining in the acquisitions budget set forth in the Company Disclosure Schedule after deducting amounts previously spent by the Company with respect to acquisitions and investments in calendar year 2005 and (b) in amounts not in excess of $2 million individually and $10 million in the aggregate with respect to all unbudgeted acquisitions; and (iv) enter into any joint venture agreement, partnership agreement or similar agreement with any Person;
(d) except as may be set forth in Sections 5.1(h)(i) and 5.1(h)(xii) of the Company Disclosure Schedule, or as otherwise required to comply with by applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall (i) enter into any new agreements grant or commitments for provide any severance or termination pay topayments or benefits to any director, officer or enter into any employment Employee of the Company or severance agreement with, any of its directorsSubsidiaries except, officers or employees or consultants except for (a) specific arrangements with 13 in the case of the Company's employeesEmployees who are not officers, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicespractice, or (ii) terminateincrease the compensation, bonus or pension, welfare, profit-sharing, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or any of its Subsidiaries, except for increases in base salary in the ordinary course of business consistent with past practice for Employees who are not officers, (iii) enter into, adopt, extend or renew any employment, severance, change in control, termination, deferred compensation or other similar agreement with any director, officer or Employee of the Company or any of its Subsidiaries, (iv) establish, adopt, enter intoamend, make suspend, terminate or exercise any new grants or awards under, amend or otherwise modify, discretion under any Compensation and Company Benefit Plan or increase amend the terms of or exercise any discretion under any Company Options or Company Awards, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, (vi) take any action to accelerate the salaryvesting or payment of any compensation or benefits under any Company Benefit Plan, wageto the extent not already provided for under any such Company Benefit Plan, bonus (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (viii) forgive any loans to directors, officers or Employees of the Company or any of its Subsidiaries;
(e) prior to making any written or oral communications to any of its or its Subsidiaries’ directors, officers or Employees pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, it shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the intended communication, and Parent and the Company shall cooperate in providing any employees or directors such communication;
(f) except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hg) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ih) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and;
(ji) neither it nor any of its Subsidiaries will authorize or enter into any ▇▇▇▇▇▇;
(j) neither it nor any of its Subsidiaries will enter into any agreement that limits (other than in an insignificant manner) the ability of the Company or any Subsidiary of the Company, or would limit (other than in an insignificant manner) the ability of Parent or any Subsidiary of Parent after the Effective Time, to compete in or conduct any line of business or compete with any Person in any geographic area or during any period, it being understood that any restriction that by its terms does not extend more than six months beyond the Effective Time shall be deemed to be insignificant;
(k) neither it nor any of its Subsidiaries will enter into any marketing Contract with respect to natural gas for a term longer than 31 days from the date of such Contract (or six months in the case of Bolivia);
(l) neither it nor any of its Subsidiaries will enter into any marketing Contract with respect to crude oil for a term longer than two full months from the last day of the calendar month in which such Contract is entered into; and
(m) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company Seller covenants and agrees as to itself ------------------ and its Subsidiaries that, after that from the date hereof and prior to the Effective Time Closing Date, except (unless Parent shall A) as provided herein, (B) as required by any existing Contract or (C) otherwise approve consented to in writingwriting by Buyer, which approval shall not be unreasonably withheld Seller will:
4.02.01 Not (A) operate or delayedin any manner deal with, incur obligations with respect to, or undertake any transactions relating to, the Subject Properties other than transactions (i) in the normal usual and except as otherwise expressly contemplated by this Agreement):
customary manner, (aii) the business of it a nature and its Subsidiaries shall be conducted in an amount consistent with prior practice, (iii) in the ordinary and usual regular course consistent with past practices andof business of owning and operating the Subject Properties, and (iv) subject to the extent consistent therewithterms and conditions of this Agreement; (B) dispose of, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell encumber or otherwise dispose relinquish any of or subject to Lien the Subject Properties (other than Permitted Liensrelinquishments resulting from the expiration of leases that Seller has no right or option to renew); (C) waive, compromise or settle any right or claim that would have a material PURCHASE AND SALE AGREEMENT, PAGE 9 10 adverse effect on the ownership, operation or value of any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or Subject Properties alter the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital StockEffective Date; or (viD) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject commit to any Lien (other than Permitted Liens) expenditure in excess of $10,000.00 net to the interest of Seller for capital expenditures on any shares ofproperty.
4.02.02 Promptly notify Buyer of any suit, lessor demand action, or securities convertible into or exchangeable or exercisable forother proceeding before any court, arbitrator, or options, warrants, calls, commitments governmental agency and any cause of action which relates to the Subject Properties or rights which might result in impairment or loss of any kind portion of the Subject Properties or which might hinder or impede the operation of the Subject Properties.
4.02.03 Make or give all notifications, filings, consents or approvals from, to acquireor with all governmental authorities, any shares of its Capital Stock of any class and will cooperate with Buyer in obtaining the issuance, assignment or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in as the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate orcase may be, by any means, make any acquisition of, or investment in, assets or stock each such authority of any other Person;
(d) except such Permits as may be necessary for Buyer to own and operate the Subject Properties following the consummation of the transactions contemplated in this Agreement; provided that Seller shall not be required to comply with applicable law or by existing contractual commitmentsincur any expense in connection therewith.
4.02.04 Maintain in effect insurance providing the same type coverage, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent same amounts with past practices, the same deductibles as the insurance maintained in effect by Seller or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate its affiliates on the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoingEffective Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cotton Valley Resources Corp)
Interim Operations. The From and after the date hereof, the Seller shall cause the Company covenants and agrees as to itself ------------------ and its Subsidiaries thatto conduct their respective businesses in the ordinary course consistent with past practice (including but not limited to in relation to sale practices and accounting practices) and use their commercially reasonable efforts to preserve intact the assets, after properties and relationships with Employees and third parties having material business dealings with the date hereof Company and prior to its Subsidiaries. Without limiting the Effective Time generality of the foregoing, except (unless Parent shall a) as otherwise approve required by this Agreement, (b) for actions approved in writing, writing by the Purchaser (which approval shall not be unreasonably withheld withheld, conditioned or delayed), (c) as required to comply with applicable Law or (d) as described in the Disclosure Letter, from and except as otherwise expressly contemplated by this Agreement):
(a) after the business of it date hereof, the Seller shall cause the Company and its Subsidiaries shall be conducted not to take any of the following actions:
(i) adopt any change in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesconstitution;
(bii) it shall notadopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, restructuring, recapitalization or other reorganization;
(iiii) (A) issue, sell sell, transfer, pledge, dispose of or encumber the Shares or any other equity or similar interests of the Company or any of its Subsidiaries or (B) grant any option, warrant or other right to purchase or obtain, or otherwise dispose of or subject to Lien (encumber, the Shares or any other than Permitted Liens) equity or similar interests of the Company or any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; ;
(iv) declareenter into or consummate any transaction involving the acquisition of the business, set aside stock, assets or pay any dividend payable in cash, stock or property in respect other properties of any Capital Stock; other Person for consideration in excess of $100,000 individually, or $1,000,000 in the aggregate;
(v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfersell, lease, license, guaranteetransfer, sell exchange or swap, mortgage or otherwise encumber, or subject to any Encumbrance (other than Permitted Encumbrance) or otherwise dispose of any material portion of its material properties or subject to any Lien (assets with a value or purchase price in the aggregate in excess of $500,000 other than Permitted Liens(A) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; , (ivB) make pursuant to existing agreements in effect prior to the date hereof, (C) as may be required by applicable Law or any loans Governmental Authority in order to permit or facilitate the consummation of the transactions contemplated by this Agreement, (D) dispositions of obsolete or worthless assets or (E) transactions among the Company and/or any other Person of its Subsidiaries;
(vi) incur, assume, guarantee, prepay or otherwise become liable for any Indebtedness, other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel (A) in the ordinary course of business consistent with past practices); or business, (vB) make any commitments forIndebtedness among the Company and/or any of its Subsidiaries, make or authorize any capital expenditures other than (C) guarantees by the Company of Indebtedness of its Subsidiaries, and (D) Indebtedness incurred pursuant to agreements in amounts less than $50,000 individually and $250,000 in effect prior to the aggregate or, by any means, make any acquisition of, or investment in, assets or stock execution of any other Personthis Agreement;
(dvii) except as may be required enter any Contract pursuant to comply with applicable law which the Company or by existing contractual commitments, neither it nor any of its Subsidiaries shall will be liable to pay amounts in excess of $100,000 or receive amounts in excess of $250,000 individually within a 12-month period;
(iviii) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards underrenew, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue modify in any respect material respect, or terminate any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableMaterial Contract, other than in the ordinary course of business consistent business; provided, however, that nothing in this Agreement shall prevent the Company or its Subsidiaries from entering into employment agreements or severance agreements, in each case, with past practicesemployees in the ordinary course of business;
(gix) neither it nor incur or commit to any capital expenditures other than capital expenditures incurred or committed in the ordinary course of its Subsidiaries shall business, or enter into any new line of business;
(x) (A) make, change or revoke any material Tax election, (B) file any material amended Tax Return or (C) settle or compromise any material claims liability for Taxes or litigation surrender any material claim for a refund of Taxes;
(xi) materially change its financial accounting policies or terminate procedures or materially amend or modify any of its methods of reporting income, deductions or other material Contracts items for financial accounting purposes, except as required by the Australian Financial Reporting Standards or waive, release or assign any material rights or claims;applicable Law; or
(hxii) neither it nor any of its Subsidiaries shall make any Tax election authorize, or permit any insurance policy naming it as a beneficiary agree or loss- payable payee commit to be canceled do, whether in writing or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do otherwise, any of the foregoing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Primus Telecommunications Group Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than than, in the case of the Company, Shares issuable pursuant to Company Options options outstanding on the date hereofhereof under the Stock Plans); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually the ordinary and $250,000 in the aggregate or, usual course of business; or (iv) by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other PersonPerson or entity;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors except (except for x) increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants (y) actions taken pursuant to Section 7.7, (ii) amend any existing, or pay enter into any new, employment agreements with employees of the Company or agree to pay its Subsidiary or (iii) take any pension, retirement allowance or other action that would cause an acceleration of any employee benefit not required by rights under any existing Compensation and Benefit Plan, including but not limited to any vesting of stock options prior to the Effective Time;
(e) neither it nor any of its Subsidiaries shallshall file, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business, modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hf) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ig) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jh) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Except as expressly contemplated by this Agreement or the Company Disclosure Schedule or as agreed to in writing by Parent, the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after that during the period from the date hereof and prior of this Agreement to the Effective Time (unless Parent shall otherwise approve or until termination of this Agreement in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreementaccordance with ARTICLE 7 hereof):
(a) the business of it Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries subsidiaries shall use commercially their reasonable best efforts to preserve its intact their current business organization intact organizations, keep available the services of their current officers and maintain its existing relations employees and goodwill preserve their relationships with customers, suppliers, distributorslicensors, creditorslicensees, lessorsadvertisers, employees distributors and others having business associatesdealings with them and to preserve goodwill;
(b) it the Company shall not, not (i) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise dispose encumber any shares of its capital stock or subject to Lien (other than Permitted Liens) the capital stock of any of its Subsidiaries' Capital Stock owned by it; subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (ii) amend its charterincluding, bylaws orwithout limitation, stock appreciation rights, phantom interests and stock purchase rights (whether pursuant to the 1996 Option Plan or otherwise)), except for any amendment which will not hinder, delay issuances of Common Shares upon the exercise of Options outstanding prior to the date hereof or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (vii) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries subsidiaries to purchase repurchase, redeem or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into other equity interests of the Company or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall subsidiaries (i) authorize for issuance or issueincluding, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares ofwithout limitation, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, capital stock or other equity interests of the Company or any of its subsidiaries);
(c) the Company shall not (i) sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it in any of its subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its subsidiaries, (ii) amend or otherwise change its certificate of incorporation or bylaws or permit any of its subsidiaries to amend its certificate of incorporation, bylaws or equivalent organizational documents or (iii) split, combine or reclassify any shares of its Capital Stock capital stock, and shall not permit any of its subsidiaries to split, combine or reclassify any class shares of its capital stock;
(d) the Company shall not, and shall not permit any of its subsidiaries to, declare, set aside or pay any Voting Debt dividends on (whether in cash, stock or property), or make any other than Shares issuable pursuant distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company Options outstanding on with respect to capital stock);
(e) neither the date hereof); Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner in the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except for increases and bonuses expressly contemplated by or required under existing employment agreements, bonus plans and other agreements and arrangements listed in SECTION 5.01(e) of the Company Disclosure Schedule, (ii) subject to the covenants set forth in clause (i) of this SECTION 5.01(e), enter into any new or materially amend any existing employment, severance or termination agreement with any current or former director, officer or employee of the Company other than in the ordinary and usual course of business consistent with past practicespractice, transfer(iii) except as may be required to comply with applicable law and except as provided in this Agreement, become obligated under any Benefit Plan that was not in existence on the date hereof or amend, modify or terminate any Benefit Plan or other employee benefit plan or any agreement, arrangement, plan or policy for the benefit of any current or former director, officer or employee in existence on the date hereof or (iv) pay any benefit not required by any plan or arrangement as in effect as of the date hereof (including, without limitation, the granting of, acceleration of, exercisability of or vesting of stock options, stock appreciation rights or restricted stock);
(f) the Company shall not, and shall not permit any of its subsidiaries to, acquire or agree to acquire, including, without limitation, by merging or consolidating with, or purchasing all or substantially all the assets or capital stock or other equity interests of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, other than purchases of inventory, supplies or equipment parts in the ordinary course of business consistent with past practice;
(g) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, guarantee, sell mortgage or otherwise dispose of encumber or subject to any Lien (or otherwise dispose of, or agree to sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of, any of its properties or assets, including any Company Intellectual Property, other than Permitted Liens(i) any other property pursuant to existing contracts and commitments described in SECTION 5.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or assets or incur Company Intellectual Property (or modify any material indebtedness immaterial portions of properties or other liability assets or Company Intellectual Property) and (except for additional borrowings iii) inventory in the ordinary course of business consistent with past practice;
(h) the Company shall not, and shall not permit any of its subsidiaries to, incur, assume or pre-pay any indebtedness for borrowed money or enter into any agreement to incur, assume or pre-pay any indebtedness for borrowed money, or guarantee, or agree to guarantee, any such indebtedness or obligation of another person, or issue or sell, or agree to issue or sell, any debt securities or options, warrants or calls or rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of others, enter into any "keep well" or other agreement to maintain any financial condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than borrowings by the Company under lines SECTION 5.15 or under its existing credit agreement;
(i) the Company shall not, and shall not permit any of credit in existence on its subsidiaries to, make or forgive any loans, advances or capital contributions to, guarantees for the date hereofbenefit of, or investments in, any person or entity (other than loans between or among the Company and any of its wholly-owned subsidiaries); ;
(iiij) the Company shall not, and shall not permit any of its subsidiaries to, assume, guarantee, endorse guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in for the obligations of the subsidiaries of the Company permitted under this Agreement;
(k) neither the Company nor any of its subsidiaries shall adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries (other than any transaction specifically contemplated by this Agreement);
(l) the Company shall not, and shall not permit any of its subsidiaries to, (i) enter into, amend, modify or supplement any Material Contract or License Agreement outside of the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; practice (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required necessary for the Company to comply with applicable law its obligations hereunder) or by existing contractual commitments(ii) waive, neither it nor release, grant, assign or transfer any of its Subsidiaries material rights or claims (whether such rights or claims arise under a Material Contract or otherwise);
(m) the Company shall not, and shall not permit any of its subsidiaries to, authorize or make any capital expenditures (other than pursuant to commitments prior to the date hereof disclosed in SECTION 5.01(m) of the Company Disclosure Schedule) in excess of $100,000 in the aggregate for the Company and its subsidiaries taken as a whole;
(n) the Company and its subsidiaries shall comply with their non-monetary obligations (and shall use their reasonable best efforts to comply with their monetary obligations) under the Material Contracts and License Agreements as such obligations become due;
(o) the Company and its subsidiaries (i) shall continue in force with insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with the Company's past practices and (ii) shall not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated without the prior written approval of Parent;
(p) the Company shall not, and shall not permit any of its subsidiaries to, enter into, amend, modify or supplement any agreement, transaction, commitment or arrangement with any current or former officer, director, employee or other affiliate of the Company or any of its subsidiaries (or any affiliate of any of the foregoing) other than agreements, transactions, commitments and arrangements (i) permitted by SECTION 5.01(e) hereof or (ii) as otherwise expressly contemplated by this Agreement;
(q) the Company shall not, and shall not permit any of its subsidiaries to, establish or acquire (i) any subsidiary other than wholly-owned subsidiaries or (ii) subsidiaries organized outside of the United States and its territorial possessions;
(r) the Company shall not, and shall not permit any of its subsidiaries to, amend, modify or waive any term of any outstanding security of the Company and any of its subsidiaries, except as required by this Agreement;
(s) the Company shall, and shall cause its subsidiaries to, (i) maintain any real property to which the Company and any of its subsidiaries have a leasehold interest (including, without limitation, the furniture, fixtures, equipment and systems therein) in its current condition, subject to reasonable wear and tear and subject to any casualty or condemnation, (ii) timely pay all taxes, water and sewage rents, assessments and insurance premiums affecting such real property and (iii) timely comply in all material respects with the terms and provisions of all leases, contracts and agreements relating to affecting such real property and the use and operation thereof, in all cases to the extent required by any such lease, contract or agreement;
(t) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new agreements labor or commitments for collective bargaining agreement, memorandum or understanding, grievance settlement or any severance other agreement or termination pay tocommitment to or relating to any labor union;
(u) the Company shall not, or enter into any employment or severance agreement with, and shall not permit any of its directorssubsidiaries to, officers settle or employees compromise any pending or consultants threatened suit, action, claim or litigation (except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree prior written notice to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit PlanParent);
(ev) neither it nor the Company shall not, and shall not permit any of its Subsidiaries shallsubsidiaries to, change any of the accounting policies, practices or procedures (including tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of March 31, 2001, except as may be required as a result of a change in applicable law or in GAAP, change any of the United States generally accepted accounting principles or practices used by itprinciples;
(fw) neither it nor the Company shall not, and shall not permit any of its Subsidiaries shall subsidiaries to, revalue in any material respect any of its material assets, including including, without limitation, writing down the value of inventory in any material manner or writingthe write-off of notes or accounts receivablereceivable in any material manner;
(x) the Company shall not, and shall not permit any of its subsidiaries to, make or change any material tax election, make or change any method of accounting with respect to Taxes, file any amended Tax Return or settle or compromise any material tax liability;
(y) the Company shall not, and shall not permit any of its subsidiaries to, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practicespractice (and in a manner that is not more rapid than past practice);
(gz) neither it nor the Company shall not, and shall not permit any of its Subsidiaries shall settle subsidiaries to, take, or compromise agree or commit to take, any material claims action that would, or litigation is reasonably likely to, make any representation or terminate warranty of the Company contained in this Agreement inaccurate at, or materially amend as of any time prior to, the Effective Time or modify result in any of its material Contracts the conditions to the Merger set forth in ARTICLE 6 not being satisfied, or waiveomit, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee agree to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit omit, to take any action that would cause necessary to prevent any of its representations and warranties herein to become untrue such representation or warranty from being inaccurate in any material respectrespect at any such time or to prevent any such condition from not being satisfied; and
(jaa) neither it nor the Company shall not, and shall not permit any of its Subsidiaries will authorize subsidiaries to, agree or enter into any agreement commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Rockshox Inc)
Interim Operations. The Company covenants From and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof hereof, the Sellers shall cause the Companies and prior their Subsidiaries to conduct their respective businesses in the Effective Time ordinary course consistent with past practice and use their commercially reasonable efforts to preserve intact the operations, assets, properties, physical facilities and relationships with employees, suppliers, customers and third parties having material business dealings with the Companies and their Subsidiaries. Without limiting the generality of the foregoing, except (unless Parent shall a) as otherwise approve in writingrequired by this Agreement, (b) for actions approved by the Purchasers (which approval shall not be unreasonably withheld withheld, conditioned or delayed), (c) as required to comply with applicable Law, (d) for the Restructuring Transactions if and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, only to the extent consistent therewithsubstantially as described in Section 1.3 of the Disclosure Schedule or (e) as set forth on Section 5.1 of the Disclosure Schedule, it from and after the date hereof, the Sellers shall cause the Companies and their Subsidiaries not to take any of the following actions:
(i) amend its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customerscertification of incorporation, suppliers, distributors, creditors, lessors, employees and business associatesbylaws or other similar organizational or governing documents;
(bii) it shall notadopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, restructuring, recapitalization or other reorganization;
(iiii) (A) issue, sell sell, transfer, pledge, purchase, redeem, retire, grant, dispose of or encumber the Equity Interests or any other equity or similar interests of the Companies or any of their Subsidiaries or (B) grant any option, warrant, call or other right to purchase or obtain, or otherwise dispose of or subject to Lien (encumber, the Equity Interests or any other than Permitted Liens) equity or similar interests of the Companies or any of its their Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; ;
(iv) declareenter into or consummate any transaction involving the acquisition, set aside merger or pay any dividend payable in cashconsolidation of the business, stock stock, assets or property in respect other properties of any Capital Stock; other Person;
(v) repurchaseacquire any material properties or assets or sell, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transferassign, lease, license, guaranteetransfer, sell convey, exchange or swap, mortgage or otherwise encumber, or subject to any Encumbrance (other than Permitted Encumbrance) or otherwise dispose of any material portion of its properties or subject to any Lien (assets with a value or purchase price in excess of $25,000 individually or $250,000 in the aggregate other than Permitted Liens(A) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of practice, (B) pursuant to existing agreements in effect prior to the Company incurred in the ordinary course of business; date hereof, (ivC) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required by applicable Law or any Governmental Authority in order to comply with applicable law permit or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 facilitate the consummation of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicestransactions contemplated by this Agreement, or (iiD) terminatedispositions of obsolete or worthless assets or (E) transactions entirely among the Companies and/or any of their wholly-owned Subsidiaries;
(vi) incur, establishassume, adoptguarantee, prepay or otherwise become liable for any Indebtedness, other than (A) any Indebtedness entirely among the Companies and/or any of their wholly-owned Subsidiaries, (B) guarantees by the Companies of Indebtedness of their Subsidiaries, and (C) Indebtedness incurred pursuant to agreements in effect prior to the execution of this Agreement;
(vii) enter into, make any new grants or awards underrenew, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue modify in any material respect or terminate any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableMaterial Contract, other than in the ordinary course of business consistent with past practicespractice;
(gviii) neither it nor incur or commit to any material capital expenditures other than capital expenditures incurred or committed in the ordinary course of business consistent with past practice, or enter into any new line of business;
(ix) change its financial accounting policies or procedures or any of its Subsidiaries shall settle methods of reporting income, deductions or compromise any other material claims items for financial accounting purposes, except as required by GAAP or litigation applicable Law;
(x) reclassify, combine, split, subdivide or terminate or materially amend or modify the terms of any of its material Contracts capital stock or waiveissue or authorize the issuance of any other securities in respect of, release in lieu of, or assign any material rights or claimsin substitution for, shares of its capital stock;
(hxi) neither it nor in each case except in the ordinary course of business consistent with past practice or as set forth on Section 5.1(xi) of the Disclosure Schedule, (A) increase the annual level of compensation of any employee, manager, director or officer of the Companies or any of its their respective Subsidiaries, (B) grant any bonus, benefit or other direct or indirect compensation to any employee, manager, director or officer of the Companies or any of their respective Subsidiaries, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement or Company Plan made to, for, or with any employee, manager, director or officer of the Companies or any of their respective Subsidiaries shall or otherwise modify or amend or terminate any such plan or arrangement, (D) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) which provides for total annual compensation in excess of $150,000 or total annual compensation less than $150,000 to which the Companies or any of their respective Subsidiaries is a party or involving an employee, manager, director or officer of the Companies or any of their respective Subsidiaries or (F) amend, modify or terminate any Company Plan;
(xii) terminate any Key Employee, other than for “cause”;
(xiii) recognize or bargain with any Union, enter into, modify or terminate any labor or Collective Bargaining Agreement, through negotiations or otherwise, or make any Tax election commitment or incur any liability to any Union;
(xiv) cancel or terminate any of the material insurance policies of Companies or any of their respective Subsidiaries or permit any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under such canceled, terminated or lapsed insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedpolicies are in full force and effect;
(ixv) neither it nor license, transfer, assign, abandon or otherwise dispose of the ownership of or any valid rights to use any Intellectual Property, other than non-exclusive licenses granted in the ordinary course of its Subsidiaries shall take business consistent with past practice or any action such ownership interest or omit right not material to the Business;
(xvi) waive any right of substantial value or voluntarily and knowingly suffer any extraordinary loss under any Material Contract;
(xvii) settle any material Action with respect to the Companies, their Subsidiaries, the Sellers or the Business (other than any litigation in connection with the collection of accounts receivable in the ordinary course of business consistent with past practice or to enforce the terms of this Agreement) that, with respect any such settlement, requires payment in excess of $50,000 or results in any limitation of the conduct of the Business as a condition to such settlement;
(xviii) (A) make, change or revoke any election relating to Taxes, (B) settle and/or compromise any Tax liability; (C) prepare any Tax Returns in a manner which is inconsistent with past practices with respect to the treatment of items on such Tax Returns; (D) file an amended Tax Return or a claim for refund of Taxes with respect to the income, operations or property of the Companies or the Companies’ Subsidiaries; (E) change any annual accounting period for applicable Tax purposes, adopt or change any Tax accounting method in any material respect or (F) enter into any closing agreement relating to Taxes, settle, concede, compromise or abandon any Tax claim or assessment, surrender any right to claim a refund of Taxes;
(xix) change in any material respect any timing, policy, or practices for the treatment of inventory or the collection of accounts receivable or payables of accounts payable;
(xx) implement any layoffs or mass terminations that would give rise to any obligations or Liabilities under the Worker Adjustment and Retraining Notification Act (“WARN”) or any similar state, local, or foreign Law;
(xxi) at any time prior to the Adjustment Determination Effective Time distribute or transfer Cash and Cash Equivalents to Sellers as members with a value in excess of $100,000 in the aggregate;
(xxii) take any action that would cause reasonably be expected to, individually or together with any other action, materially and adversely affect the validity or full force and effectiveness of its representations any Material Permit (or other material Permit necessary for the Companies and warranties herein their Subsidiaries to become untrue own, lease and operate their respective properties and assets and to carry on the Business as then being conducted) or result in the expiration, non-renewal, suspension, cancellation, or revocation of any material respectMaterial Permit; andor
(jxxiii) neither it nor agree or commit to take any of its Subsidiaries will authorize or enter into any agreement action to do any anything prohibited by this Section 5.1. Except as set forth in this Section 5.1, prior to the Closing, each Seller will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations with respect to the foregoingBusiness.
Appears in 1 contract
Sources: Equity Purchase Agreement (Primus Telecommunications Group Inc)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent SBC shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or the Stock Option Agreement, in the Company Disclosure Letter or as required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its chartercertificate of incorporation or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock, other than per share regular quarterly cash dividends not in excess of $0.44 per Company Share; or (vD) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries (other than the Company's Employee Stock Ownership Plan) to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iknowingly take any action that would prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a tax-free "reorganization" within the meaning of Section 368(a) authorize for issuance of the Code or issue, sell or otherwise dispose of or subject to that would cause any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant representations and warranties herein to Company Options outstanding on the date hereof); (ii) other than become untrue in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; respect;
(iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or employees except (A) for grants or directors awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (except for increases occurring B) in the ordinary normal and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing increases and the provision of individual Compensation and Benefit PlanPlans consistent with past practice for promoted or newly hired officers and employees and the adoption of Compensation and Benefit Plans for employees of new Subsidiaries in amounts and on terms consistent with past practice) or (C) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date hereof;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(fv) neither it nor any of its Subsidiaries shall revalue in issue any respect preferred stock or incur any indebtedness for borrowed money (other than indebtedness incurred solely for the purpose of funding the Escrow Account or the replacement or refinancing of existing short-term indebtedness) or guarantee any such indebtedness if the Company should reasonably anticipate that as a result of such incurrence any of the Company's or any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other Subsidiaries' outstanding senior indebtedness would be rated lower than in the ordinary course of business consistent with past practicesA by Standard & Poor's;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any Tax election or permit capital expenditures in any insurance policy naming it as calendar year in an aggregate amount in excess of the aggregate amount reflected in the Company's capital expenditure budget for such year, a beneficiary or loss- payable payee copy of which has been provided to be canceled or terminatedSBC, plus $100 million;
(ivii) except as contemplated by Section 6.1(a)(iv), neither the Company nor any of its Subsidiaries shall issue, deliver, sell, or encumber shares of any class of its common stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares except the option granted under the Stock Option Agreement, options outstanding on the date hereof under the Stock Plans, awards of options and restricted stock granted hereafter under the Stock Plans in the ordinary course of business in accordance with this Agreement and shares issuable pursuant to such options and awards;
(viii) neither it nor any of its Subsidiaries shall spend in excess of $50 million in any calendar year to acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition). For purposes of this clause (viii), the amount spent with respect to any acquisition shall be deemed to include the aggregate amount of capital expenditures that the Company is obligated to make at any time or plans to make as result of such acquisition within two years after the date of acquisition;
(ix) neither it nor its Subsidiaries shall enter any business other than the telecommunications business and those businesses traditionally associated with the telecommunications business or enter into or extend any telecommunications business outside the geographic areas served by it and its Subsidiaries as of the date of this Agreement; and
(x) neither it nor any of its Subsidiaries shall agree prior to the Effective Time to do any of the foregoing after the Effective Time.
(b) SBC covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or in the SBC Disclosure Letter or as required by applicable Law):
(i) it shall not (A) amend its certificate of incorporation or by-laws in any manner that would prohibit or hinder, impede or delay in any material respect the Merger or the consummation of the transactions contemplated hereby; (B) declare, set aside or pay any dividend or other distribution payable in cash or property (other than SBC Common Stock) in respect of any capital stock, other than per share regular quarterly cash dividends; or (C) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, except in open market transactions or in connection with the SBC Stock Plans, any shares of its capital stock or any securities convertible into or exchangeable for any shares of its capital stock;
(ii) neither it nor any of its Subsidiaries shall knowingly take any action that would prevent the Merger from qualifying as a tax-free "reorganization" within the meaning of Section 368(a) of the Code or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect, provided, however, that nothing contained herein shall limit the ability of SBC to exercise its rights under the Stock Option Agreement; and
(jiii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(c) SBC and the Company agree that any written approval obtained under this Section 6.1 may be relied upon by the other party if signed by the Chief Executive Officer, Chief Financial Officer, chief legal officer or another executive officer of the other party.
Appears in 1 contract
Sources: Merger Agreement (Southern New England Telephone Co)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) During the period from the date hereof of this Agreement and prior to continuing until the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve of the Merger, except as set forth in writing, which approval shall not be unreasonably withheld or delayedthe Disclosure Schedule, and except as otherwise expressly contemplated by this Agreement):unless Active has consented in writing thereto, Alier:
(ai) Shall conduct its operations according to its usual, regular and ordinary course in substantially the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to same manner as heretofore conducted;
(ii) To the extent consistent therewithwith its business, it and its Subsidiaries shall use commercially reasonable efforts to preserve intact its business organization intact and maintain goodwill, keep available the services of its existing relations and goodwill with customers, suppliers, distributors, creditors, lessorsofficers, employees and contractors and maintain satisfactory relationships with those persons having business associatesrelationships with it;
(biii) it shall notShall promptly notify Active of any Material Adverse Effect, any material litigation or material governmental complaints, investigations or hearings (i) issueor communications indicating that the same may be contemplated), sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine material breach of any representation or reclassify its outstanding shares of Capital Stock; warranty contained herein;
(iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; Shall not (vA) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, issue any shares of its Capital Stock capital stock, effect any stock split or otherwise change its capitalization as it existed on the date hereof; (B) grant, confer or award any securities convertible into option, warrant, conversion right or exchangeable or exercisable for other right not existing on the date hereof to acquire any shares of its Capital Stockcapital stock; (C) increase any compensation, make payment of cash bonuses to, or enter into or amend any employment agreement with any of its present or future officers, directors, employees or contractors except for normal increases consistent with past practice; (D) grant any severance or termination package to any employee, contractor or consultant; or (viE) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect, except to the extent required by applicable law or under the terms of this Agreement;
(v) Shall not enter into any agreement or transaction, or agree to enter into any agreement or transaction, outside the ordinary course of business, including, without limitation, any transaction involving a plan of merger, consolidation, joint venture, license agreement partial or complete or partial liquidation or dissolution, merger reorganization, recapitalization, restructuring or otherwise restructure a purchase, sale, lease or recapitalize other disposition of a material portion of assets or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cvi) neither it nor any With the exception of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible licenses entered into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans , shall not transfer to any other Person person or entity any rights to the Intellectual Property Rights;
(other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel vii) Except in the ordinary course of business consistent business, with past practicesprior notice to Active, shall not violate, amend, or otherwise change the terms of any of the contracts set forth in the Disclosure Schedules;
(viii) Shall not commence a lawsuit other than for: the routine collection of bills (other than against customers or vendors of Active and its Subsidiaries of which Active or its counsel have received notice); or (v) make any commitments forfor injunctive relief on the grounds that Alier has suffered immediate and irreparable harm not compensable in money damages provided Alier has obtained the prior written consent of Active, make such consent not to be unreasonably withheld; or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock for breach of any other Personthis Agreement;
(dix) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but Shall not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any other action which could reasonably be expected to cause a major customer or omit supplier or key employee or contractor to take any action that would cause any of terminate its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.relationship with Alier;
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Active Software Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) During the period from the date hereof of this Agreement and prior to continuing until the earlier of the termination of this Agreement or the Effective Time (unless Parent shall otherwise approve of the Merger, except as set forth in writing, which approval shall not be unreasonably withheld or delayedthe Disclosure Schedule, and except as otherwise expressly contemplated by this Agreement):unless Active has consented in writing thereto, Premier:
(ai) Shall conduct its operations according to its usual, regular and ordinary course in substantially the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to same manner as heretofore conducted;
(ii) To the extent consistent therewithwith its business, it and its Subsidiaries shall use commercially reasonable efforts to preserve intact its business organization intact and maintain goodwill, keep available the services of its existing relations and goodwill with customers, suppliers, distributors, creditors, lessorsofficers, employees and contractors and maintain satisfactory relationships with those persons having business associatesrelationships with it;
(biii) it shall notShall promptly notify Active of any Material Adverse Effect, any material litigation or material governmental complaints, investigations or hearings (i) issueor communications indicating that the same may be contemplated), sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine material breach of any representation or reclassify its outstanding shares of Capital Stock; warranty contained herein;
(iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; Shall not (vA) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, issue any shares of its Capital Stock capital stock, effect any stock split or otherwise change its capitalization as it existed on the date hereof; (B) grant, confer or award any securities convertible into option, warrant, conversion right or exchangeable or exercisable for other right not existing on the date hereof to acquire any shares of its Capital Stockcapital stock; (C) increase any compensation, make payment of cash bonuses to, or enter into or amend any employment agreement with any of its present or future officers, directors, employees or contractors except for normal increases consistent with past practice; (D) grant any severance or termination package to any employee, contractor or consultant; or (viE) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect, except to the extent required by applicable law or under the terms of this Agreement;
(v) Shall not enter into any agreement or transaction, or agree to enter into any agreement or transaction, outside the ordinary course of business, including, without limitation, any transaction involving a plan of merger, consolidation, joint venture, license agreement partial or complete or partial liquidation or dissolution, merger reorganization, recapitalization, restructuring or otherwise restructure a purchase, sale, lease or recapitalize other disposition of a material portion of assets or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cvi) neither it nor any With the exception of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible licenses entered into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans , shall not transfer to any other Person person or entity any rights to the Intellectual Property Rights;
(other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel vii) Except in the ordinary course of business consistent business, with past practicesprior notice to Active, shall not violate, amend, or otherwise change the terms of any of the contracts set forth in the Disclosure Schedules;
(viii) Shall not commence a lawsuit other than for: the routine collection of bills (other than against customers or vendors of Active and its Subsidiaries of which Active or its counsel have received notice); or (v) make any commitments forfor injunctive relief on the grounds that Premier has suffered immediate and irreparable harm not compensable in money damages provided Premier has obtained the prior written consent of Active, make such consent not to be unreasonably withheld; or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock for breach of any other Personthis Agreement;
(dix) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but Shall not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any other action which could reasonably be expected to cause a major customer or omit supplier or key employee or contractor to take any action that would cause any of terminate its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.relationship with Premier;
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to Since the Effective Time (unless Parent shall otherwise approve in writingTime, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):set forth in Schedule 3.40, each of the Company and the Entities have:
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred operated only in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminateand maintained, establishin all material respects, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except their properties in accordance with past practices in a condition suitable for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plantheir current use;
(eb) neither it nor any used commercially reasonable efforts to keep available generally the services of its Subsidiaries shallpresent officers and Employees, except as may be required as a result of a change in law or in GAAP, change any of and preserved generally the accounting principles or practices used by itpresent relationships with Persons having business dealings with them;
(fc) neither it nor not sold, transferred, assigned, conveyed or otherwise disposed of any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, Assets other than in the ordinary course of business consistent with past practices;
(d) not adopted or effected a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(e) except in connection with capital expenditures pursuant to Schedule 1.1(b), not created or allowed the creation of any Lien other than Permitted Encumbrances on any Asset;
(f) other than pursuant to Schedule 1.1(b), not made capital expenditures in excess of (A) $100,000 for any single project or (B) $300,000 in the aggregate for all projects;
(g) neither it nor not amended or proposed to amend the Company’s or any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claimsEntity’s Organizational Documents;
(h) neither it nor not split, combined or reclassified any equity securities of its Subsidiaries shall make the Company or any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedEntity;
(i) neither it nor not, except as required by applicable Law or by any agreement in effect as of its Subsidiaries shall take the date of this Agreement, (A) made any action policy or omit to take any action program that would cause be a Company Benefit Plan, (B) increased the compensation payable or that could become payable by the Company or any of its representations and warranties herein Entity to become untrue any Employee, or (C) entered into, established or adopted any new, amended in any material respect; and, or terminated any plan, agreement, policy or program that is or would be a Company Benefit Plan;
(j) neither it nor except in connection with capital expenditures spent pursuant to Schedule 1.1(b) or in the ordinary course of business consistent with past practices, not repurchased, prepaid or incurred any Indebtedness or guaranteed any Indebtedness of another Person, issued or sold any debt securities or options, warrants, calls or other rights to acquire any debt securities of any Entity, guaranteed any debt securities of another Person, made a capital investment in any other Person, entered into any “keep well” or other agreement to maintain the financial condition of any other Person or entered into any arrangement having the economic effect of any of the foregoing;
(k) not, except in the ordinary course of business consistent with past practices or in connection with capital expenditures spent pursuant to Schedule 1.1(b), entered into or amended or modified in any material respect, or consented to the termination of (other than at its Subsidiaries will authorize stated expiry date), any Material Contract or enter any other agreement that, if in effect as of the Execution Date would constitute a Material Contract;
(l) not initiated, settled or compromised any Proceeding pending or threatened before any arbitrator, court or other Governmental Authority;
(m) not made any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law;
(n) not entered into any transaction with Sellers or any of their Affiliates other than the Company or the Entities;
(o) not entered into any Derivative Contracts;
(p) not changed their fiscal year;
(q) not made any change in any method of Tax accounting principles or practices, or make any Tax election;
(r) not (i) granted any bonuses, whether monetary or otherwise, or materially increased any wages, salary, severance, pension or other compensation or benefits in respect of its Employees, officers, directors, independent contractors or consultants, other than as provided in any written agreement or required by applicable Law or (ii) taken action to accelerate the vesting or payment of any compensation or benefit for any Employee, officer, director, independent contractor or consultant;
(s) not acquired (by merger, consolidation or acquisition of stock or assets or otherwise) any Person, including a corporation, partnership, limited liability company or other business organization or division thereof;
(t) not entered into any agreement to do any of the foregoing; and
(u) not experienced a Material Adverse Effect (nor any event or events that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Effect).
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Midstream Partners, LP)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws certificate of incorporation or by-laws or, except for any amendment which will not hinderamend, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.055 per Share; or (v) repurchase, redeem or otherwise acquire acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than in accordance with the Rights Agreement and other than Shares issuable pursuant to Company Options options and other stock-based awards outstanding on the date hereofhereof under the Stock Plans); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwiseA) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit for any capital expenditures other than capital expenditures (a) in the aggregate amount remaining in the capital appropriations/spending budgets set forth in the Company LA_LAN01:179306.23 Disclosure Schedule after deducting amounts previously authorized or committed by the Company with respect to calendar year 2005 and (b) in amounts less than not in excess of $50,000 2 million individually and $250,000 10 million in the aggregate orwith respect to all unbudgeted capital expenditures, or (B) by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other Person or entity for consideration in excess of (a) in the aggregate amount remaining in the acquisitions budget set forth in the Company Disclosure Schedule after deducting amounts previously spent by the Company with respect to acquisitions and investments in calendar year 2005 and (b) in amounts not in excess of $2 million individually and $10 million in the aggregate with respect to all unbudgeted acquisitions; and (iv) enter into any joint venture agreement, partnership agreement or similar agreement with any Person;
(d) except as may be set forth in Sections 5.1(h)(i) and 5.1(h)(xii) of the Company Disclosure Schedule, or as otherwise required to comply with by applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall (i) enter into any new agreements grant or commitments for provide any severance or termination pay topayments or benefits to any director, officer or enter into any employment Employee of the Company or severance agreement with, any of its directorsSubsidiaries except, officers or employees or consultants except for (a) specific arrangements with 13 in the case of the Company's employeesEmployees who are not officers, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicespractice, or (ii) terminateincrease the compensation, bonus or pension, welfare, profit-sharing, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or any of its Subsidiaries, except for increases in base salary in the ordinary course of business consistent with past practice for Employees who are not officers, (iii) enter into, adopt, extend or renew any employment, severance, change in control, termination, deferred compensation or other similar agreement with any director, officer or Employee of the Company or any of its Subsidiaries, (iv) establish, adopt, enter intoamend, make suspend, terminate or exercise any new grants or awards under, amend or otherwise modify, discretion under any Compensation and Company Benefit Plan or increase amend the terms of or exercise any discretion under any Company Options or Company Awards, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, (vi) take any action to accelerate the salaryvesting or payment of any compensation or benefits under any Company Benefit Plan, wageto the extent not already provided for under any such Company Benefit Plan, bonus (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (viii) forgive any loans to directors, officers or Employees of the Company or any of its Subsidiaries;
(e) prior to making any written or oral communications to any of its or its Subsidiaries’ directors, officers or Employees pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, it shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the intended communication, and Parent and the Company shall cooperate in providing any employees or directors such communication;
(f) except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially LA_LAN01:179306.23 modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hg) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(ih) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and;
(ji) neither it nor any of its Subsidiaries will authorize or enter into any ▇▇▇▇▇▇;
(j) neither it nor any of its Subsidiaries will enter into any agreement that limits (other than in an insignificant manner) the ability of the Company or any Subsidiary of the Company, or would limit (other than in an insignificant manner) the ability of Parent or any Subsidiary of Parent after the Effective Time, to compete in or conduct any line of business or compete with any Person in any geographic area or during any period, it being understood that any restriction that by its terms does not extend more than six months beyond the Effective Time shall be deemed to be insignificant;
(k) neither it nor any of its Subsidiaries will enter into any marketing Contract with respect to natural gas for a term longer than 31 days from the date of such Contract (or six months in the case of Bolivia);
(l) neither it nor any of its Subsidiaries will enter into any marketing Contract with respect to crude oil for a term longer than two full months from the last day of the calendar month in which such Contract is entered into; and
(m) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries has agreed that, after from the date hereof and prior to of the Effective Time (Merger Agreement until the Closing Time, unless the Parent shall otherwise approve has consented thereto in writing, which approval shall not be unreasonably withheld or delayedthe Company shall, and except as otherwise expressly contemplated by this Agreement):
shall cause each of its subsidiaries to (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve conduct its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except operations only in the ordinary course of business consistent with past practices practice; (b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and except for obligations of Subsidiaries franchises of the Company incurred and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them, the loss of any of which would be reasonably likely to result in a material adverse effect on the Company; (c) use reasonable efforts to keep in full force and effect adequate insurance coverage and maintain and keep its properties and assets in good repair, working order and condition, normal wear and tear excepted; (d) not amend or modify its respective charter or certificate of incorporation, by-laws, or other charter or organization documents; (e) not authorize for issuance, issue, sell, grant, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge or encumber any shares of any class or series of capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the ordinary course Company or any of business; (iv) make its subsidiaries, any loans securities convertible into or exercisable or exchangeable for any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any other Person such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options as then in effect granted to Subsidiaries directors, officers, employees and consultants of the Company orprior to the date of the Merger Agreement); (f) not (i) split, customary loans combine or advances reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its stock, (ii) solely in the case of the Company, declare, set aside or pay any dividends on, or make other distributions in respect of, any of the Company's stock, or (iii) repurchase, redeem or otherwise acquire, or agree or commit to employees in connection with business-related travel repurchase, redeem or otherwise acquire, any shares of stock or other equity or debt securities or equity interests of the Company or any of its subsidiaries; (g) not amend or otherwise modify the terms of any Company Stock Options or the Company Option Plans, the effect of which would be to make such terms more favorable to the holders thereof or persons eligible for participation therein; (h) other than regularly scheduled seniority increases in the ordinary course of business consistent with past practices); practice, not increase the compensation payable or (v) make to become payable to any commitments fordirectors, make officers or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in employees of the aggregate or, by any means, make any acquisition of, Company or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements subsidiaries, or commitments for grant any severance or termination pay to, or enter into any employment or severance agreement with, with any director or officer of the Company or any of its directorssubsidiaries, officers or employees establish, adopt, enter into or consultants amend in any material respect or take action to accelerate any material rights or benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee or the Company of any of its subsidiaries; (i) not acquire or agree to acquire (including, without limitation, by merger, consolidation, or acquisition of stock, equity securities or interests, or assets) any corporation, partnership, joint venture, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets of any other person outside the ordinary course of business consistent with past practice or any interest in any real properties (whether or not in the ordinary course of business); (j) not incur, assume or guarantee any indebtedness for borrowed money (including draw-downs on letters or lines of credit) or issue or sell any notes, bonds, debentures, debt instruments, evidences of indebtedness or other debt securities of the Company or any of its subsidiaries or any options, warrants or rights to purchase or acquire any of the same, except for (ai) specific arrangements with 13 renewals of the Company's employees, including one existing bonds and letters of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees credit in the ordinary course of business not to exceed $1,000,000 in the aggregate and consistent with past practices, or (ii) terminateadvances, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus loans or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than indebtedness in the ordinary course of business consistent with past practices;
practice in an aggregate amount not to exceed $1,000,000; (gk) neither it nor not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any material properties or assets of the Company and its subsidiaries taken as a whole; (l) not authorize or make any capital expenditures (including by lease) in excess of $1,000,000 in the aggregate for the Company and all of its subsidiaries; (m) not make any material change in any of its Subsidiaries shall accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by U.S. GAAP or applicable tax laws; (n) not make any material tax election or settle or compromise any material claims United States or litigation foreign tax liability; (o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate or materially amend or modify any of its material Contracts certain specified contracts or waive, release or assign any material rights or claims;
claims thereunder; (hp) neither it nor not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries shall make any Tax election subsidiaries; and (q) except as to subsections (a), (b) and (c) above, not agree or permit any insurance policy naming it as a beneficiary commit in writing or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement otherwise to do any of the foregoing.
Appears in 1 contract
Interim Operations. The parties intend that the following covenants shall preserve the Company's business, finances, and operations as currently conducted, and shall not be interpreted in such a manner as to transfer such control of operations to Parent prior to the Effective Time. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof of this Agreement and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayeddelayed in light of Parent's plans for the Company's and its Subsidiaries' business after the Closing Date, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries Subsidiaries, including commercially reasonable efforts to bill ▇▇▇ collect accounts receivable, shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it the Company and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees employees, and business associates; provided, however, that the Company shall operate to conserve its cash and cash equivalents;
(b) it shall not, not (i) issue, sell sell, pledge, dispose of, or otherwise dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer its Subsidiaries' certificate of incorporation or the Mergerby-laws; (iii) split, combine combine, or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside aside, or pay any dividend payable in cash, stock stock, or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem redeem, or otherwise acquire acquire, except in connection with the Stock Plans or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or other than upon exercise of securities outstanding on September 30, 1999, issue, sell sell, pledge, dispose of, or otherwise dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments commitments, or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (or any other than Shares issuable pursuant to Company Options outstanding on the date hereof); property or assets, (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell sell, mortgage, pledge, dispose of, or otherwise dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); liability, (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually pursuant to the year 1999/2000 capital appropriations/spending budgets initialed by Parent and $250,000 in the aggregate or, Company and previously delivered to Parent or (iv) by any means, make any acquisition of, or investment in, assets or stock of any other Personperson or entity, other than investments in cash equivalents, and other than in the ordinary course of business, provided, however that for purposes of this Section 6.1(c), acquisitions of all or substantially all of the assets of a business shall not be considered as done in the ordinary course of business regardless of previous activities of the Company;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend amend, or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salaryPlans, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pensionbonuses, retirement allowance or increase the salary, wage, bonus, or other employee benefit not required by compensation of any existing Compensation and Benefit Planemployees;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation that, individually or in the aggregate, would have an adverse effect on the Company's financial condition equal to or in excess of $50,000, or, except in the ordinary and usual course of business, modify, amend, or terminate or materially amend or modify any of its material Contracts or Contracts, waive, release release, or assign any material rights or claims, or enter into any material Contracts or agreements;
(hf) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated, except in the ordinary and usual course of business;
(ig) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and;
(jh) neither it nor any of its Subsidiaries will authorize shall establish, adopt, enter into, or make any new leases, capital leases, operating lease commitments, or any renewals or extensions thereof;
(i) neither it nor any of its Subsidiaries shall incur, authorize, or enter into any agreement short-term or long-term debt;
(j) it and its Subsidiaries shall (i) maintain their respective properties and facilities, in as good working order and condition as at present, ordinary wear and tear excepted, except as would not, individually or in the aggregate, be reasonably expected to do have a Company Material Adverse Effect; and (ii) perform all of their respective material obligations under material agreements relating to or affecting their respective assets, properties or rights;
(k) it and its Subsidiaries shall not: (i) guarantee any indebtedness; (ii) create or assume any mortgage, pledge or other lien or encumbrance upon any assets or properties whether now owned or hereafter acquired; (iii) sell, assign, lease, pledge or otherwise transfer or dispose of any property or equipment except in the foregoing.ordinary course of business consistent with past practice; (iv) acquire or negotiate for the acquisition of (by merger, consolidation, purchase of a substantial portion of assets, or otherwise) any business or the start-up of any new business; (v) commence a lawsuit other than for routine collection of bills; or
Appears in 1 contract
Sources: Merger Agreement (Comps Com Inc)
Interim Operations. The Company covenants Except as expressly contemplated hereby, without the prior written consent of the other parties, IDC and agrees DWS (and DWS Delaware, as applicable) shall conduct its business in all material respects in the ordinary course consistent with past practice and use all reasonable efforts to: (i) preserve intact its present business organization; (ii) keep available the services of its officers; (iii) maintain in effect all material foreign, federal, state and local licenses, permits, approvals and authorizations that are required for it to itself ------------------ carry on its business as currently conducted or proposed to be conducted; and (iv) preserve existing relationships with its Subsidiaries thatmaterial partners, after lenders, suppliers and others having material business relationships with it so that its business or prospects shall not be adversely affected in any material respect as of the Effective Time. Further, and without limiting the generality of the foregoing, and excluding those matters necessary to accomplish the Redomestication Transaction as provided in Section 6.2, from the date hereof and prior to until the Effective Time (unless Parent Time, without the prior written consent of the other Parties, IDC and DWS shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):not:
(a) the business amend its certificate of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andincorporation, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesarticles or bylaws or other applicable governing instrument;
(b) it shall not, (i) issue, sell or otherwise dispose amend any term of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; outstanding securities;
(ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iiic) split, combine combine, subdivide or reclassify its outstanding any shares of Capital Stock; (iv) its capital stock or other equity interests or declare, set aside or pay any dividend payable or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Capital Stock; (v) repurchaseits capital stock, redeem or redeem, repurchase or otherwise acquire or permit offer to redeem, repurchase, or otherwise acquire any of its Subsidiaries to purchase securities;
(d) adopt a plan or otherwise acquireagreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(e) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its Capital Stock capital stock of any class or other equity interests or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or optionsany rights, warrants, calls, commitments warrants or rights of any kind options to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness such capital stock or other liability equity interests;
(except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iiif) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition ofcapital expenditures, or investment in, assets or stock of any other Personexcept for capital expenditures not exceeding $50,000 in the aggregate;
(dg) except as may be required to comply with applicable law acquire (by merger, consolidation, acquisition of stock or by existing contractual commitmentsassets or otherwise) any corporation, neither it nor any of its Subsidiaries shall (i) enter into any new agreements limited liability corporation, partnership, other business organization or commitments for any severance or termination pay todivision thereof, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation assets of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivablePerson, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claimsbusiness;
(h) neither it nor except in the ordinary course of business, sell, lease, license, encumber or otherwise transfer any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedassets;
(i) neither it nor except in the ordinary course of business, incur or assume any Indebtedness;
(j) except in the ordinary course of business, create, incur, assume or suffer to exist any Lien upon any of its Subsidiaries shall take property, assets or revenues, whether now owned or hereafter acquired, other than liens for Taxes that are not yet due, statutory liens, or to secure Indebtedness or other obligations permitted by this Agreement;
(k) make any action loan, advance or omit capital contributions to take or investment in any action Person, or acquire any Investment Interest;
(l) enter into any contract or agreement, other than in the ordinary course of business, or relinquish or amend in any material respect any material contract (as defined in Item 601(b)(1) of Regulation S-K of the SEC) to which it is a party, other than transactions and commitments contemplated by this Agreement;
(m) enter into any agreement or arrangement that would cause materially limits or otherwise materially restricts it or any of its representations Affiliates or any successor thereto or that could, after the Effective Time, limit or restrict any of IDC, the Surviving Corporation or any of its Affiliates, from engaging in any business;
(n) enter into any employment, deferred compensation or other similar agreement with any of its director or officer or with any other Person; or establish or adopt any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any of its director, officer or any other Person; increase the compensation, bonus or other benefits payable to any director, or officer; or amend the terms of any outstanding option or right to purchase shares of its Common Stock or its other capital stock (except for the cancellation of all outstanding DWS options and warranties herein warrants prior to become untrue the Effective Time in accordance with Section 4.5(c));
(o) except for changes pending as of the date hereof which have been disclosed by DWS to IDC, change: (1) its methods of accounting or accounting practices in any material respect, except as required by concurrent changes in GAAP or by law; andor (2) its fiscal year, except with prior notification to the other parties;
(jp) neither it nor settle any of its Subsidiaries will authorize material litigation, investigation, arbitration, proceeding or other claim;
(q) make any material tax election or enter into any agreement settlement or compromise of any material tax liability;
(r) take any action, other than as expressly permitted by this Agreement, that would make any of its representation or warranty hereunder inaccurate in any material respect at the Effective Time; or
(s) agree or commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after between the date hereof of this Agreement and prior to the Effective Time Time, except (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except i) as otherwise expressly contemplated by this Agreement):
, (aii) as set forth in Section 7.1(a) of the business Company Disclosure Letter, (iii) as required by applicable Law, or (iv) to the extent Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the businesses of it the Company and its the Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any all material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except respects in the ordinary course of business consistent with past practices and practice. Without limiting the generality of the foregoing, except for obligations of Subsidiaries (A) as expressly contemplated by this Agreement, (B) as set forth in Section 7.1(a) of the Company incurred Disclosure Letter, (C) as required by applicable Law or (D) to the extent Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the ordinary course Company agrees that neither the Company nor any Subsidiary shall, between the date of business; this Agreement and the Effective Time, do any of the following:
(i) amend or restate the articles of incorporation or bylaws of the Company, or such similar organizational or governing documents of each of its Subsidiaries;
(ii) grant, issue, deliver, sell, transfer, dispose of, pledge or encumber any shares of the Company’s or any of its Subsidiaries’ capital stock or equity interests, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares of capital stock or equity interests, voting securities or convertible securities, other than the issuance of Shares issuable upon the exercise of Company Options or upon the vesting of RSUs outstanding under the Stock Plans as of the date of this Agreement or issued as required by the employment agreements and the Stock Plans;
(iii) declare, authorize, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or equity interests, except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary;
(iv) make reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any loans capital stock or equity interests of the Company or any of its Subsidiaries;
(v) (A) acquire (including by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business or business organization, any division or business unit thereof or any material assets, (B) incur, create, assume or otherwise become liable for any amount of Indebtedness or other liability or issue any debt securities or any right to acquire debt securities or assume, guarantee, endorse or otherwise become responsible or liable for any liability of any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel (1) in the ordinary course of business consistent with past practices); practice or (v2) make draws on any commitments for, make existing credit facility or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in line of credit of the aggregate or, by any means, make any acquisition of, Company or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall solely for working capital purposes, (iC) enter into any new agreements line of business, (D) make any loans, advances or commitments for any severance or termination pay capital contributions to, or enter into any employment or severance agreement withinvestments in, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent Persons other than wholly owned Subsidiaries and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicespractice, or (E) sell, lease, license, encumber or otherwise dispose of or transfer (by merger, consolidation, sale of stock or assets or otherwise) any amount of its assets other than in the ordinary course of business consistent with past practice;
(gvi) neither it nor make or commit to make any capital expenditure (not including capital expenditures for rental instruments) other than in respect of those capital expenditure projects that are (A) contemplated by the Company’s fiscal year 2012 forecast or (B) not in excess of $5,000,000 in the aggregate;
(vii) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Subsidiary (other than the Merger);
(viii) (A) increase the salary, wages, benefits, bonuses or other compensation payable or to become payable to its Subsidiaries shall current or former directors, officers or Employees, except for increases required under employment agreements existing on the date hereof, (B) enter into or amend or otherwise alter any employment, change of control, retention or severance agreement with, or establish, adopt, enter into or amend any Benefit Plan (other than ordinary course changes to any ERISA plan other than severance plans), (C) except as required under any employment agreement existing on the date hereof or as may be required to implement the actions contemplated by this Agreement, including Section 4.3 and Section 7.8, accelerate the vesting or payment of any compensation or benefit under any Benefit Plan, or (D) take any action to fund the payment of compensation or benefits under any Benefit Plan, except, in the case of clauses (C) and (D), in the ordinary course of business consistent with past practice, or as may be required by the terms of any Benefit Plan in effect on the date hereof or to comply with applicable Law, including Section 409A of the Code;
(ix) unless otherwise required by Law, enter into any collective bargaining agreement or other contract with a labor union, works council or other labor organization;
(x) make any material change to its methods of accounting, principles or practices (or change an annual accounting period) in effect as of the date of this Agreement, except as required by changes in GAAP or Law or by the SEC or as recommended by the Company’s independent registered public accounting firm;
(xi) (A) make, change or rescind (or file a request to make, change or rescind) any material Tax election, (B) settle or compromise any material claims Tax liability, audit claim or litigation assessment, (C) surrender any right to claim for a Tax refund, (D) change in any material respect (or terminate file a request to make any such change) any accounting method in respect of Taxes, (E) file any amendment to an income or materially amend other material Tax Return, (F) enter into any closing agreement, settle or modify compromise any material claim or material assessment in respect of Taxes, or (G) consent to any extension or waiver of the statute of limitations applicable to any claim or assessment in respect of Taxes, except, in each case, as required by Law;
(xii) write up, write down or write off the book value of any of its material Contracts assets, other than (A) in the ordinary course of business and consistent with past practice or waive, release or assign any material rights or claims(B) as may be required by GAAP;
(hxiii) neither it nor (A) waive, settle, satisfy or compromise any claim against the Company (which shall include any pending or threatened action), except to the extent subject to reserves existing on the date of this Agreement, or (B) waive, settle, satisfy or compromise any material claim by the Company, except in the ordinary course of business consistent with past practice;
(xiv) other than in the ordinary course of business consistent with past practice and on terms not materially adverse to the Company and the Subsidiaries taken as a whole, enter into, amend, modify, cancel, waive any rights under or consent to the termination of any Material Contract or any Contract that would be a Material Contract if in effect on the date of this Agreement;
(xv) enter into, renew or amend in any material respect any transaction, Contract, arrangement or understanding between the Company or any Subsidiaries, on the one hand, and any Affiliate of the Company (other than any of the Company’s Subsidiaries), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, except for any agreement, renewal or amendment made in the ordinary course of business consistent with past practice or contemplated by the Company’s fiscal year 2012 budget;
(xvi) (A) assign, transfer, license or sublicense, mortgage or encumber any material Intellectual Property owned by the Company or any of its Subsidiaries shall Subsidiaries, except for non-exclusive licenses or non-exclusive sublicenses of such Intellectual Property in the ordinary course of business consistent with past practice, or (B) fail to pay any fee, take any action, protect any trade secret, or make any Tax election filing reasonably necessary to maintain its ownership of the material Intellectual Property owned by the Company or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectSubsidiaries; andor
(jxvii) neither it nor any of its Subsidiaries will authorize or enter into any agreement agree in writing to do any of the foregoing.
(b) Without the prior written consent of the Company, Parent and Merger Sub shall not, and shall cause the Guarantor and their respective Affiliates to not, (i) enter into discussions or negotiations regarding any Contracts or arrangements or understandings (whether oral or written) or commitments to enter into Contracts, arrangements or understandings (whether oral or written) or (ii) amend or otherwise supplement any Contracts, arrangements or understandings (whether oral or written) in existence on the date of this Agreement, in the case of clauses (i) and (ii) that are between Parent, Merger Sub, the Guarantor or any of their Affiliates, on the one hand, and any officer or director of the Company or any of its Subsidiaries, on the other hand.
(c) If the Company identifies any activities of the Company or any of its Subsidiaries, including those activities of their respective directors, officers, managers, employees, independent contractors, representatives or agents, that the Company reasonably believes to be in violation of the FCPA, the Company shall use reasonable best efforts to cause each of its Subsidiaries and Affiliates to cease such activities and take any additional remedial action reasonably requested by Parent or that the Company reasonably deems appropriate under the circumstances.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
(a) its business and the business of it and its Subsidiaries (including, without limitation, research and development, establishment and maintenance of marketing and sales programs, and customer support) shall be conducted in the ordinary and usual course consistent in all material respects with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; , (ii) amend its charterarticles of organization, bylaws by-laws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or Merger, the Merger; Rights Agreement other than that amendment contemplated hereby, (iii) split, combine or reclassify its outstanding shares of Capital Stock; , (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; Stock other than the issuance of Rights in connection with the issuance of Capital Stock upon the exercise of Company Options, (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; Stock or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-wholly owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) except as provided in ANNEX A, authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); , Shares that may be issuable under the Company's 1994 Employee Stock Purchase Plan as of January 31, 1999, and automatic grants of director stock options that may be mandated by the Director Stock Option Plans) or any Voting Debt (ii) other than for sales of products and licenses of software in the ordinary and usual course of business consistent with past practicespractices and as set forth on Schedule 5.1(c), transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or assets, (iii) other than in the ordinary and usual course of business consistent with past practices, incur or modify any material indebtedness or other material liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); , (iiiiv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; , (ivv) make any loans to any other Person (other than to Subsidiaries of the Company or, or reasonable and customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); ) or (vvi) make any commitments for, make or authorize any capital or prepaid expenditures other than in amounts less than $50,000 150,000 individually and $250,000 3,000,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(fe) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than receivable except in the ordinary course of business consistent with past practices, except as may be required as a result of a change in law or in GAAP;
(gf) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it except as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.set forth on Schedule 5.1
Appears in 1 contract
Sources: Merger Agreement (Shiva Corp)
Interim Operations. The (a) Except as otherwise expressly contemplated by this Agreement, the Company covenants and agrees as to itself ------------------ and its Subsidiaries that from and after the date of this Agreement and prior to the Effective Time, the business of the Company and its Subsidiaries shall be conducted in all material respects in the ordinary and usual course and, to the extent consistent therewith, the Company shall and shall cause its Subsidiaries to use reasonable best efforts to preserve its business organization intact in all material respects and to maintain in all material respects the Company’s existing relations and goodwill with customers, suppliers, regulators, agents, resellers, creditors, lessors, employees and business associates. In addition, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the date hereof of this Agreement and prior to the Effective Time (unless Parent shall otherwise approve in writing, writing (which approval shall not be unreasonably withheld withheld, delayed or delayedconditioned), and except as otherwise expressly contemplated by this AgreementAgreement or disclosed in Section 6.1(a) of the Company Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bi) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer by-laws or the Mergercomparable governing instruments; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any Capital Stockcapital stock, other than
(I) dividends and distributions by a wholly owned Subsidiary to its parent Person and (II) cash dividends on the Series F Preferred required under the Company’s certificate of incorporation; or (vD) repurchaseother than the redemption of Series F Preferred contemplated by Section 6.17, purchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any its Subsidiaries’ shares of its Capital Stock capital stock or any securities convertible into or exchangeable into or exercisable for any such shares of its Capital Stock; capital stock;
(ii) it shall not merge or (vi) consolidate with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentliquidation;
(ciii) neither it nor shall not (A) establish, adopt, amend in any material respect or terminate any Company Compensation and Benefit Plan or amend the terms of any outstanding equity-based awards, except (I) to comply with applicable Law, including the requirements of Section 409A of the Code, and (II) if the transactions contemplated by this Agreement are not consummated prior to December 31, 2007, subject to prior consultation with Parent, the Company shall be entitled to establish a 2008 cash bonus plan having terms reasonably comparable in all material respects to the terms of the Company’s 2007 bonus plan; (B) grant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries shall (i) authorize for issuance Subsidiaries, except to comply with applicable Law or issue, sell or otherwise dispose the provisions of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to the Company Options outstanding Compensation and Benefit Plans as in effect on the date hereof)hereof or the provisions of this Agreement; (iiC) increase the compensation, bonus or pension, welfare, severance or other than in the ordinary and usual course of business consistent with past practicesbenefits of, transferpay any bonus to, lease, license, guarantee, sell or otherwise dispose of or subject make any new equity awards to any Lien (other than Permitted Liens) director, officer or employee of the Company or any other property or assets or incur or modify any material indebtedness or other liability (of its Subsidiaries, except for additional borrowings (I) the payment of bonuses in the ordinary course under lines accordance with Company Compensation and Benefit Plans existing as of credit in existence on the date hereof, (II) the payment of cash bonuses established pursuant to clause (iii)(A)(II) of this Section 6.1(a); , (iiiIII) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except increases in base salary in the ordinary course of business consistent with past practices practice for current, promoted or newly hired employees who are not officers and (IV) increases in base salary related to normal periodic performance reviews, including the annual performance reviews in March 2008 if the Closing has not occurred by that time; (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Compensation and Benefit Plan, except for to the extent already provided in any such Company Compensation and Benefit Plan or provided in this Agreement; (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Compensation and Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or to comply with applicable Law, including the requirements of Subsidiaries Section 409A of the Code; or (F) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries;
(iv) it shall not incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for (A) indebtedness for borrowed money incurred in the ordinary course of businessbusiness (including, subject to Section 6.13, in connection with the upcoming auction of 700 MHz spectrum ) consistent with the terms of the Company’s existing indebtedness for borrowed money not to exceed $195 million in the aggregate; (B) indebtedness for borrowed money to fund the redemption of Series F Preferred contemplated by Section 6.17 consistent with the terms of the Company’s existing indebtedness for borrowed money; (C) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money or permitted to be incurred under this clause (iv) consistent with the terms of the Company’s existing indebtedness for borrowed money; (D) guarantees by the Company of indebtedness of its wholly-owned Subsidiaries; and (E) indebtedness for borrowed money used to make any loans the capital expenditures permitted under clause (v) of this Section 6.1(a);
(v) it shall not make or commit to any other Person (capital expenditures, other than in the ordinary course of business and in any event (A) with respect to Subsidiaries the period through December 31, 2007, not in excess of 103% of the aggregate amount contemplated by the Company’s capital expenditure budget for the year 2007, a copy of which capital expenditure budget for the year 2007 is attached to the Company orDisclosure Letter, customary loans reduced for all amounts spent or advances committed to employees prior to the date of this Agreement, provided that the timing of all expenditures under such budget shall be substantially consistent with the timing contemplated in connection such budget, and (B) with business-related travel respect to the year 2008, not in excess of $165 million in the aggregate and not more than $50 million in any fiscal quarter;
(vi) it shall not transfer, lease, license, sell, mortgage, pledge, place a Lien upon or otherwise dispose of any of their respective property or assets (including capital stock of any of its Subsidiaries), except for (A) transfers, leases, licenses, sales, or other dispositions of inventory and equipment in the ordinary course of business consistent with past practices); practice (B) leases or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock licenses of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than spectrum in the ordinary course of business consistent with past practicespractice, (C) dispositions or sales of their respective properties or assets in the ordinary course of business consistent with past practice with a fair market value not to exceed $15 million individually or $35 million in the aggregate and (D) Liens, mortgages and pledges on properties or assets to secure any indebtedness for borrowed money permitted by clause (iv) of this Section 6.1(a);
(gvii) neither it nor shall not issue, deliver, sell, or place a Lien upon shares of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares, except (A) any shares of Class A Common Stock issued pursuant to Company Options and other awards outstanding on the date of this Agreement under the Company Stock Plans; (B) shares of Class A Common Stock issued upon conversion of (x) the Company’s 1.50% Senior Convertible Debentures due 2025 or (y) the Series F Preferred; and (C) Liens on the capital stock of its Subsidiaries to secure any indebtedness for borrowed money permitted by clause (iv) of this Section 6.1(a);
(viii) subject to Section 6.13, it shall not acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise;
(ix) it shall not make any change with respect to accounting policies or procedures, except as required by changes in GAAP or by Law;
(x) except as required by Law, it shall not (A) make any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material accounting method therefor that is inconsistent with elections made, positions taken or accounting methods used in preparing or filing similar Tax Returns in prior periods or (B) settle or resolve any material Tax controversy;
(xi) it shall not (A) enter into any line of business in any geographic area other than the current lines of business of the Company and its Subsidiaries and products and services reasonably ancillary thereto, including any current line of business and products and services reasonably ancillary thereto in any geographic area for which the Company or any of its Subsidiaries shall settle currently holds a FCC License authorizing the conduct of such business, product or compromise service in such geographic area, or (B) except as currently conducted, engage in the conduct of any material claims business in any state which would require the receipt or litigation transfer of a Communications License or terminate any other license issued by any Governmental Entity authorizing operation or provision of any communication services or foreign country that would require the receipt or transfer of, or application for, a Company License to the extent such license would be reasonably expected to prevent or materially amend or modify any delay the consummation of its material Contracts or waive, release or assign any material rights or claimsthe transactions contemplated herein;
(hxii) neither subject to Section 6.13, it nor shall not file for any Company License (A) outside of the ordinary course of business or (B) the receipt of which would reasonably be expected to prevent, impair or delay consummation of the Merger;
(xiii) subject to Section 6.13 and other than investments in marketable securities in the ordinary course of business consistent with past practice, it shall not make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company);
(xiv) subject to Section 6.13, it shall not enter into (A) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business or (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (B) any Contract requiring the Company or its Subsidiaries to deal exclusively with a Person or related group of Persons, (C) any other Contract or series of related Contracts with respect to which the Company would be required to file a Current Report on Form 8-K pursuant to Item 1.01 thereof or that is reasonably likely to provide for payments to the Company and its Subsidiaries, or by the Company and its Subsidiaries, in excess of $1 million in any twelve-month period or (D) that would or would be reasonably likely to prevent, delay or impair the Company’s ability to consummate the transactions contemplated by this Agreement;
(xv) it shall not settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity for an amount to be paid by the Company or any of its Subsidiaries shall make in excess of $500,000 (exclusive of any Tax election amounts paid by or permit under any insurance policy naming it as a beneficiary maintained by the Company or loss- payable payee its Subsidiaries) or which would be reasonably likely to be canceled have any adverse impact on the operations of the Company or terminated;
(i) neither it nor any of its Subsidiaries as a result of a non-monetary settlement;
(xvi) it shall take any action or omit not change (other than pursuant to take any action that would cause software updates, upgrades and patches) any of the material technology used in its representations respective businesses;
(xvii) it shall not assign, transfer, cancel, fail to renew or fail to extend any FCC License or material State License, except for cancellations or modifications of FCC Licenses for microwave facilities in the ordinary course of business consistent with past practice, or cancellations or modifications of FCC Licenses for microwave facilities in connection with negotiated relocation agreements in accordance with Sections 27.1111, et seq. and warranties herein Sections 101.69, et seq. of the FCC Rules, provided that such actions would not, individually or in the aggregate, reasonably be expected to become untrue in prevent or materially delay the consummation of the transactions contemplated hereby;
(xviii) it shall not enter into any material respectcollective bargaining agreement; and
(jxix) neither it nor any of its Subsidiaries will shall not authorize or enter into any agreement to do any of the foregoing.
(b) Prior to making any written communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable opportunity to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
Appears in 1 contract
Interim Operations. The Pursuant to the Merger Agreement, the Company covenants and agrees as to itself ------------------ and its Subsidiaries has agreed that, after except as expressly contemplated or provided by the date hereof and Merger Agreement or agreed to in writing by Honeywell, prior to the Effective Time time the directors of the Purchaser constitute a majority of the Company Board (unless Parent shall otherwise approve in writingthe "Board Appointment Date"), which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it the Company and its Subsidiaries shall subsidiaries will be conducted only in the ordinary and usual course consistent with past practices and, and to the extent consistent therewith, it each of the Company and its Subsidiaries shall subsidiaries will use commercially its best reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributorsemployees, creditors, lessors, employees creditors and business associates;
partners, and (ba) it shall the Company will not, directly or indirectly, (i) issue, sell sell, transfer or otherwise dispose pledge or agree to sell, transfer or pledge any treasury stock of the Company or subject to Lien (other than Permitted Liens) any capital stock of any of its Subsidiaries' Capital Stock subsidiaries beneficially owned by it, except upon the exercise of employee stock options or other rights to purchase shares of Common Stock pursuant to the ESPP outstanding on January 26, 1997; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer by-laws or the Mergersimilar organizational documents; or (iii) split, combine or reclassify the outstanding Shares or Preferred Stock or any outstanding capital stock of any of the subsidiaries of the Company; and (b) neither the Company nor any of its outstanding shares of Capital Stock; subsidiaries shall (ivi) declare, set aside or pay any dividend or other distribution payable in cash, stock or property in with respect to its capital stock other than dividends paid by subsidiaries of any Capital Stock; (v) repurchase, redeem the Company to the Company or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares subsidiaries in the ordinary course of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stockbusiness; or (viii) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to encumber any Lien (other than Permitted Liens) any additional shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class of the Company or any Voting Debt (its subsidiaries, other than Shares issuable shares reserved for issuance on January 26, 1997 pursuant to the exercise of Company Options outstanding on the date hereof)January 26, 1997; (iiiii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any assets other than in the ordinary and usual course of business and consistent with past practicespractice, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability liability, other than in the ordinary and usual course of business and consistent with past practice; (iv) redeem, purchase or otherwise acquire directly or indirectly any of its capital stock; (v) grant any increase in the compensation payable or to become payable by the Company or any of its subsidiaries to any of its executive officers or adopt any new or amend or otherwise increase or accelerate the payment or vesting of the amounts payable or to become payable under any existing bonus, incentive compensation, deferred compensation, severance, profit sharing, stock option, stock purchase, insurance, pension, retirement or other employee benefit plan, agreement or arrangement; (vi) enter into any employment or severance agreement with or, except for additional borrowings in accordance with the existing written policies of the Company, grant any severance or termination pay to any officer, director or employee of the Company or any of its subsidiaries; (vii) permit any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to Honeywell, except in the ordinary course under lines of credit in existence on the date hereof)business and consistent with past practice; (iiiviii) assumeenter into any contract or transaction relating to the purchase of assets other than in the ordinary course of business consistent with prior practices; (ix) change any of the accounting methods used by it unless required by generally accepted accounting principles ("GAAP"), guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for neither the obligations Company nor any of its subsidiaries shall make any other Person material tax election except in the ordinary course of business consistent with past practices and practice, change any material tax election already made, adopt any material tax accounting method except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)practice, change any material tax accounting method unless required by GAAP, enter into any closing agreement, settle any tax claim or assessment or consent to any tax claim or assessment or any waiver of the statute of limitations for any such claim or assessment; or (vx) make take any commitments foraction with the intent of causing any of the conditions to the Offer set forth in Annex A to the Merger Agreement to not be satisfied. No Solicitation. Pursuant to the Merger Agreement, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, Company has agreed that neither it the Company nor any of its Subsidiaries shall subsidiaries will (and the Company will use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Honeywell, any of its affiliates or representatives) concerning any proposal or offer to acquire all or a substantial part of the business and properties of the Company or any of its subsidiaries or any capital stock of the Company or any of its subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving the Company or any subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), except that the Company and the Company Board are not 20 23 prohibited from (i) enter into taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as described below, withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend, any new agreements or commitments for any severance or termination pay toAcquisition Proposal, or enter into any employment agreement with respect to any Acquisition Proposal. The Company also agreed to immediately cease any existing activities, discussions or severance agreement with, negotiations with any parties conducted prior to the date of the Merger Agreement with respect to any of the foregoing. The Merger Agreement provides that the Company, prior to the acceptance of Shares pursuant to the Offer, may furnish information concerning the Company and its directorssubsidiaries to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal if (i) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Company Board determines in good faith, after consulting with a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and (ii) in the opinion of the Company Board, only after receipt of advice from outside legal counsel, the failure to provide such information or access or to engage in such discussions or negotiations could reasonably be expected to cause the Company Board to violate its fiduciary duties to the Company's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (i) and (ii) is referred to in the Merger Agreement as a "Superior Proposal"). The Company will within two business days following receipt of a Superior Proposal notify Honeywell of the receipt of the same. The Company will promptly provide to Honeywell any material non-public information regarding the Company provided to any other party which was not previously provided to Honeywell. At any time after two business days following notification to Honeywell of its intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if permitted to do so pursuant to the terms of the Merger Agreement, the Company Board may withdraw or modify its approval or recommendation of the Offer and may enter into an agreement with respect to a Superior Proposal, provided it shall concurrently with entering into such agreement pay or cause to be paid to Honeywell the Termination Fee (as defined below) plus any amount payable at the time for reimbursement of expenses pursuant to the Merger Agreement. If the Company has notified Honeywell of its intent to enter into an agreement with respect to a Superior Proposal in compliance with the preceding sentence and has otherwise complied with such sentence, the Company may enter into an agreement with respect to such Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification) after the expiration of the initial two business day period without any further notification. Indemnification and Insurance. Pursuant to the Merger Agreement, for six years after the Effective Time, the Surviving Corporation (or any successor to the Surviving Corporation) shall indemnify, defend and hold harmless the present and former officers and directors of the Company and its subsidiaries and persons who become any of the forgoing prior to the Effective Time with respect to matters occurring at or employees or consultants except for (a) specific arrangements with 13 prior to the Effective Time to the full extent required under Delaware law, the terms of the Company's employeesCertificate of Incorporation or the By-laws, including one as in effect as of its directorsJanuary 26, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in 1997 and, the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation terms of any employees indemnification agreement entered into with the Company prior to January 26, 1997. The Merger Agreement also provides that Honeywell or the Surviving Corporation will maintain the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of not less than six years after the Effective Time, provided, that Honeywell may substitute therefor policies of substantially equivalent coverage and amounts containing terms no less favorable to such former directors (except for increases occurring in or officers. Hone▇▇▇▇▇ ▇▇▇ also agreed that if the ordinary and usual course of businessexisting D&O Insurance expires, which shall include normal periodic performance reviews and related compensation and benefit increasesis terminated or cancelled during such period, Honeywell or the Surviving Corporation will use all reasonable efforts to obtain substantially similar D&O Insurance, but not any general across-the-board increases) or consultants or pay or agree in no event will it be required to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any aggregate premiums for such insurance in excess of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any 150% of the accounting principles aggregate premiums paid in 1996 on an annualized basis for such purpose (the "1996 Premium"). If Honeywell or practices used by it;
(f) neither it nor any the Surviving Corporation is unable to obtain the amount of its Subsidiaries shall revalue D&O Insurance required for such aggregate premium, Honeywell or the Surviving Corporation has agreed to obtain as much insurance as can be obtained for an annual premium not in any respect any excess of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any 150% of the foregoing1996 Premium.
Appears in 1 contract
Interim Operations. The Company covenants Except as expressly contemplated hereby, without the prior written consent of the other parties, IDC and agrees DWS (and DWS Delaware, as applicable) shall conduct its business in all material respects in the ordinary course consistent with past practice and use all reasonable efforts to: (i) preserve intact its present business organization; (ii) keep available the services of its officers; (iii) maintain in effect all material foreign, federal, state and local licenses, permits, approvals and authorizations that are required for it to itself ------------------ carry on its business as currently conducted or proposed to be conducted; and (iv) preserve existing relationships with its Subsidiaries thatmaterial partners, after lenders, suppliers and others having material business relationships with it so that its business or prospects shall not be adversely affected in any material respect as of the Effective Time. Further, and without limiting the generality of the foregoing, and excluding those matters necessary to accomplish the Redomestication Transaction as provided in Section 6.2, from the date hereof and prior to until the Effective Time (unless Parent Time, without the prior written consent of the other Parties, IDC and DWS shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):not:
(a) the business amend its certificate of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andincorporation, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesarticles or bylaws or other applicable governing instrument;
(b) it shall not, (i) issue, sell or otherwise dispose amend any term of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; outstanding securities;
(ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iiic) split, combine combine, subdivide or reclassify its outstanding any shares of Capital Stock; (iv) its capital stock or other equity interests or declare, set aside or pay any dividend payable or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Capital Stock; (v) repurchaseits capital stock, redeem or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or otherwise acquire or permit offer to redeem, repurchase, or otherwise acquire any of its Subsidiaries to purchase securities;
(d) adopt a plan or otherwise acquireagreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(e) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its Capital Stock capital stock of any class or other equity interests or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or optionsany rights, warrants, calls, commitments warrants or rights of any kind options to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness such capital stock or other liability equity interests;
(except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iiif) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition ofcapital expenditures, or investment in, assets or stock of any other Personexcept for capital expenditures not exceeding $50,000 in the aggregate;
(dg) except as may be required to comply with applicable law acquire (by merger, consolidation, acquisition of stock or by existing contractual commitmentsassets or otherwise) any corporation, neither it nor any of its Subsidiaries shall (i) enter into any new agreements limited liability corporation, partnership, other business organization or commitments for any severance or termination pay todivision thereof, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation assets of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivablePerson, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claimsbusiness;
(h) neither it nor except in the ordinary course of business, sell, lease, license, encumber or otherwise transfer any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminatedassets;
(i) neither it nor except in the ordinary course of business, incur or assume any Indebtedness;
(j) except in the ordinary course of business, create, incur, assume or suffer to exist any Lien upon any of its Subsidiaries shall take property, assets or revenues, whether now owned or hereafter acquired, other than liens for Taxes that are not yet due, statutory liens, or to secure Indebtedness or other obligations permitted by this Agreement;
(k) make any action loan, advance or omit capital contributions to take or investment in any action Person, or acquire any Investment Interest;
(l) enter into any contract or agreement, other than in the ordinary course of business, or relinquish or amend in any material respect any material contract (as defined in Item 601(b)(1) of Regulation S-K of the SEC) to which it is a party, other than transactions and commitments contemplated by this Agreement;
(m) enter into any agreement or arrangement that would cause materially limits or otherwise materially restricts it or any of its representations Affiliates or any successor thereto or that could, after the Effective Time, limit or restrict any of IDC, the Surviving Corporation or any of its Affiliates, from engaging in any business;
(n) enter into any employment, deferred compensation or other similar agreement with any of its director or officer or with any other Person; or establish or adopt any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any of its director, officer or any other Person; increase the compensation, bonus or other benefits payable to any director, or officer; or amend the terms of any outstanding option or right to purchase shares of its Common Stock or its other capital stock (except for the cancellation of all outstanding DWS options and warranties herein warrants prior to become untrue the Effective Time in accordance with Section 4.5(c));
(o) except for changes pending as of the date hereof which have been disclosed by DWS to IDC, change: (1) its methods of accounting or accounting practices in any material respect, except as required by concurrent changes in GAAP or by law; andor (2) its fiscal year, except with prior notification to the other parties;
(jp) neither it nor settle any of its Subsidiaries will authorize material litigation, investigation, arbitration, proceeding or other claim;
(q) make any material tax election or enter into any agreement settlement or compromise of any material tax liability;
(r) take any action, other than as expressly permitted by this Agreement, that would make any of its representation or warranty hereunder inaccurate in any material respect at the Effective Time; or
(s) agree or commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Pursuant to the Merger Agreement, the Company covenants and agrees as to itself ------------------ and its Subsidiaries has agreed that, after except as expressly contemplated or provided by the date hereof and Merger Agreement or agreed to in writing by the Parent, prior to the Effective Time time the directors of the Purchaser constitute a majority of the Company Board, (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it the Company and its Subsidiaries subsidiaries shall be conducted only in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itbusiness; (ii) the Company will not, directly or indirectly, (a) sell, transfer or pledge or agree to sell, transfer or pledge any Shares or capital stock of any of its subsidiaries beneficially owned by it, either directly or indirectly; (b) amend its charter, bylaws or, except for any amendment which will not hinder, delay Certificate of Incorporation or make more costly to Parent the Offer Bylaws or the Mergersimilar organizational documents; or (iiic) split, combine or reclassify its the outstanding shares Shares or any outstanding capital stock of Capital Stockany of the subsidiaries of the Company; (iviii) neither the Company nor any of its subsidiaries shall, (a) declare, set aside or pay any dividend or other distribution payable in cash, stock or property in with respect of any Capital Stockto its capital stock except for its regular quarterly cash dividend; (vb) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to encumber any Lien (other than Permitted Liens) any additional shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class of the Company or any Voting Debt (its subsidiaries, other than Shares issuable reserved for issuance on the date thereof upon exercise of outstanding Rights pursuant to Company Options the Rights Agreement or issuances pursuant to the exercise of options outstanding on the date hereof)thereof; (iic) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any material assets other than in the ordinary and usual course of business and consistent with past practicespractice including, transferwithout limitation, lease, license, guarantee, sell or otherwise dispose certain sales of or subject to any Lien precious metal inventories; (other than Permitted Liensd) any other property or assets or incur or modify any material indebtedness or other liability material liability, other than in the ordinary and usual course of business and consistent with past practice, provided that the Company may borrow money for use in the ordinary and usual course of business; or (e) redeem, purchase or otherwise acquire directly or indirectly any of its capital stock other than redemption of the outstanding Rights pursuant to the Rights Agreement; (iv) neither the Company nor any of its subsidiaries shall modify, amend or terminate any of its material agreements or waive, release or assign any material rights or claims, except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)business and consistent with past practice; (iiiv) neither the Company nor any of its subsidiaries shall permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated without notice to the Parent, except in the ordinary course of business and consistent with past practice; (vi) neither the Company nor any of its subsidiaries shall: (a) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person person, except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicespractice; (b) make any material loans, advances or capital contributions to, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modifyinvestments in, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors person (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree other than to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any subsidiaries of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableCompany), other than in the ordinary course of business and consistent with past practices;
practice; or (gc) enter into any material commitment or transaction with respect to any of the foregoing (including, but not limited to, any borrowing, capital expenditure or purchase, sale or lease of assets); (vii) neither it the Company nor any of its Subsidiaries subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify change any of its material Contracts or waive, release or assign any material rights or claims;
the accounting methods used by it unless required by GAAP; (hviii) neither it the Company nor any of its Subsidiaries shall make subsidiaries will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
of its subsidiaries (iother than the Merger); (ix) neither it the Company nor any of its Subsidiaries shall take subsidiaries will, except as required by law, enter into, adopt, create or amend in any action material respect or omit terminate any benefit plans maintained or contributed to take by the Company or any of its subsidiaries; (x) neither the Company nor any of its subsidiaries will make or agree to make any capital expenditure or capital expenditures other than capital expenditures in accordance with the Company's 1998 capital expenditure program or in the ordinary course of business consistent with past practice; (xi) neither the Company nor any of its subsidiaries will increase the compensation of any director, executive officer or other key employee of the Company or pay any benefit or amount not required by a plan, agreement, understanding or arrangement as in effect on the date of this Agreement to any such person; (xii) neither the Company nor any of its subsidiaries will cause a material change in investment policy or a material change in investment vehicles related to the assets in any pension plan, other than actions taken in the ordinary course of business or that are consistent with or required by its fiduciary duties; (xiii) neither the Company nor any of its subsidiaries will take, or agree to commit to take, any action that would cause make any representation or warranty of its representations and warranties the Company contained herein to become untrue inaccurate in any material respectrespect at, or as of any time prior to, the Effective Time (except for representations made as of a specific date); and
or (jxiv) neither it the Company nor any of its Subsidiaries subsidiaries will authorize or enter into any an agreement to do any of the foregoingforegoing actions.
Appears in 1 contract
Sources: Offer to Purchase (WHX Corp)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws by-laws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; the Rights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockStock other than the issuance of Rights in connection with the issuance of Capital Stock upon the exercise of Company Options; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock Stock; or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.any
Appears in 1 contract
Interim Operations. The Company covenants (a) From and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writingearlier of the termination of this Agreement or the consummation of the Merger, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business businesses of it the Company and its Subsidiaries shall be operated and conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws orcourse, except for any amendment as otherwise contemplated by this Agreement, as required by applicable Laws or as Parent shall otherwise consent in writing (which will consent shall not hinderbe unreasonably withheld, delay conditioned or make more costly to delayed). Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire shall not take or permit any of its Subsidiaries (including, for this purpose, the Company or its Subsidiaries) to purchase take any action or otherwise acquire, omit to take any shares action that is reasonably likely to (i) result in any of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares the conditions of its Capital Stock; the Merger set forth in Article VIII not being satisfied or (viii) adopt a plan prevent the consummation of complete the Merger. Without limiting the generality of the foregoing, from and after the date hereof and prior to the earlier of the termination of this Agreement or partial liquidation or dissolutionthe consummation of the Merger, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor the Company shall not, and shall not permit any of its Subsidiaries shall (i) authorize for issuance or to, issue, sell sell, pledge, grant, transfer, encumber or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares ofof capital stock or other equity interests of the Company or any of its Subsidiaries, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness capital stock or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries equity interests of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall or declare, set aside or pay any dividend or other distribution payable in cash, stock or property (ior any combination thereof) enter into with respect to its capital stock or other equity interests (except dividends or other distributions in cash, stock or property paid by any new agreements direct or commitments for indirect wholly owned Subsidiary of the Company to the Company or to any severance other direct or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 indirect wholly owned Subsidiary of the Company's employees, including one of its directors, which have been previously disclosed to Parent and ).
(b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as As a result of a change entering into this Agreement, neither Parent nor Merger Sub, directly or indirectly, has the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and notwithstanding anything to the contrary contained in law this Agreement, no consent of Parent or Merger Sub will be required with respect to any matter set forth in GAAPthis Agreement to the extent that the requirement of such consent would violate any applicable Law. Prior to the Effective Time, change any subject to applicable Law and the rights of stockholders of the accounting principles or practices used by it;
(f) neither it nor any Company thereunder, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations and the operations of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoingSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Cadus Corp)
Interim Operations. The Company Each of NationsRent and RSC covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent the other party shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):, disclosed in its respective Disclosure Letter or required by applicable Law): 6.
(a) 1.1. the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially its best reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;; 6.
(b) 1.2. it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws orcertificate of incorporation or by-laws, except for any amendment which will not hinderthat the certificate of incorporation and by-laws of RSC shall be amended as contemplated by the Charter Amendments and Section 5.1.15, delay or make more costly to Parent the Offer or the Mergerrespectively; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend or distribution payable in cash, stock or property in respect of any Capital Stockcapital stock (other than pursuant to the terms of any Rights Plan (as defined in Section 6.1.3)); or (vD) repurchase, redeem or otherwise acquire (other than Rights (as defined in Section 6.1.3) pursuant to any Rights Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stockcapital stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;6.
(c) 1.3. neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares (w) shares of capital stock issuable pursuant to Company Options options outstanding on the date hereof); hereof under the NationsRent Stock Plans or RSC Stock Plans, pursuant to the applicable Stock Option Agreement, or pursuant to outstanding options or rights to acquire shares of capital stock described in Section 5.1.2.1 or 5.1.2.2, (iix) other than additional options or rights to acquire shares of capital stock granted under the terms of any NationsRent Stock Plan or RSC Stock Plan, as the case may be, as in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence effect on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except hereof in the ordinary course of business consistent the operation of such Stock Plan, (y) shares of capital stock issuable pursuant to the options or rights described in clause (x) and (z) pursuant to the terms of any stockholder rights protection plan adopted by NationsRent or RSC, as the case may be, after consultation with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; other party (iv) make any loans with respect to any other Person (other than to Subsidiaries of the Company oreither party, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practicesa "Rights Plan"); or provided that (vA) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock terms of any other Person;
Rights Plan shall provide that none of (dI) except the acquisition by NationsRent or RSC, as the case may be required to comply with applicable law be, of shares of RSC Common Stock or by existing contractual commitmentsNationsRent Common Stock, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay respectively, pursuant to, or enter into the exercise or performance by either Party of its rights or obligations under, the RSC Stock Option Agreement or the NationsRent Stock Option Agreement, (II) in the case of any employment such Rights Plan of RSC, the receipt or severance agreement withownership by any Person of the shares of RSC Common Stock to be issued in the Merger, (III) the consummation of any of its directorsthe other transactions contemplated hereby or by the Stock Option Agreements or (IV) the acquisition by any director or officer or any Person who may be deemed to be an "affiliate" of NationsRent or RSC (as determined under Section 6.12) of any shares of capital stock of NationsRent or RSC, officers as the case may be, issuable pursuant to any NationsRent Stock Options or employees RSC Stock Options, as the case may be, shall be deemed to cause or consultants except for (a) specific arrangements with 13 give rise to any distribution of the Company's employeesrights to purchase capital stock of a Party to be issued pursuant to the applicable Rights Plan (in either case, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases"Rights") or consultants to cause such Rights to become void, separable, distributable, unredeemable or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
exercisable; (eB) neither it RSC or NationsRent nor any officer, director, affiliate or associate of its Subsidiaries shallNationsRent or RSC (or any group comprised of such persons) shall be deemed to become an "acquiring person" or to meet any other similar definition of a Person which would (whether upon notice or lapse of time or both) cause any such Rights to become void, except as may be required separable, distributable, unredeemable or exercisable as a result of a change the transactions contemplated hereby, by the Stock Option Agreements or by any acquisition referred to in law clause (A) above, individually or in GAAPthe aggregate; (C) any such Rights Plan (and any Rights issued thereunder) adopted by RSC shall, change by its own terms and without any further action on the part of the accounting principles or practices used by it;
(f) neither it nor any board of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any directors of the foregoing.Surviving Corporation, terminate (without payment) 60 days after the earlier of the termination of this Agreement or the A-16
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time date on which Purchaser's nominees comprise a majority of the Board of Directors of the Company (unless Parent Praxair shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially its reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) pledge any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend the Company Charter or its charterby-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockShares or Preferred Shares other than regular quarterly or semi-annual cash dividends not in excess of $0.12 per Share and regular quarterly or semi-annual cash dividends on the Preferred Shares; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or capital stock except in connection with the ordinary course of operations of the CBI Salaried Employee Stock Ownership Plan (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent1987);
(ciii) neither it nor any of its Subsidiaries shall except as disclosed in Section 7.1(a) of the Company Disclosure Letter (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to Company Options options outstanding on the date hereof)hereof under the Stock Plan or upon conversion of Convertible Preferred Shares; (iiB) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or encumber any property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)liability; or (vC) make any commitments for, make or authorize any capital expenditures other than existing capital expenditures required to be made pursuant to existing capital projects, as set forth in amounts less than $50,000 individually and $250,000 in Section 7.1(a)(iii) of the aggregate Company Disclosure Letter, which have been previously authorized or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity;
(div) except as may be required to comply with applicable law or by existing contractual commitmentsdisclosed in Section 7.1(a) of the Company Disclosure Letter, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for other than increases occurring in compensation in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.course
Appears in 1 contract
Interim Operations. The Company and Parent each covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to until the Effective Time (unless Parent or the Company, as the case may be, shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement, the respective Disclosure Letter, the Stock Option Agreement, the Company Budget or the Parent Budget, or as required by applicable Law):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and each of its Subsidiaries shall use commercially reasonable its best efforts to preserve its business organization intact and maintain its existing relations rela tions and goodwill with customers, suppliers, distributorscreditors, creditorsregulators, lessors, employees and business associates;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charterarticles of incorporation, bylaws or, except for any amendment which will not hinder, delay charter or make more costly to Parent the Offer or the Mergerby-laws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than (A) in the case of the Company, regular quarterly cash dividends not in excess of $0.34 per Share (which amount may, at the election of the Company, be increased by not more than 6.5% per year, beginning in the 1997 fiscal year of the Company) and regular quarterly cash dividends on the preferred and preference stock of its Subsidiaries and (B) in the case of Parent, regular quarterly cash dividends not in excess of $0.43 per share of Parent Common Stock (which amount may, at the election of Parent, be increased by not more than 6.5% per year, beginning in the 1997 fiscal year of Parent) and regular quarterly cash dividends on the preferred shares of subsidiaries of Parent; or (v) repurchase, redeem or otherwise acquire (except for (A) mandatory sinking fund obligations existing on the date hereof and (B) redemptions, purchases, acquisitions or issuances required by the respective terms of any Stock Plans, in the case of the Company, or Parent Stock Plans, in the case of Parent, or any dividend reinvestment plans as in effect on the date hereof in the ordinary course of the operation of such plans) or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than (x) in the case of the Company, Shares issuable pursuant to Company Options options outstanding on the date hereof under the Stock Plans or upon conversion of the Preferred Shares and additional options or rights to acquire Shares required by the terms of any Stock Plan as in effect on the date hereof in the ordinary course of the operation of such Stock Plan, (y) in the case of the Parent, shares of Parent Common Stock issuable pursuant to options outstanding under the Parent Stock Plans and additional options or rights to acquire Parent Shares required by the terms of any Parent Stock Plan as in effect on the date hereof in the ordinary course of 30 38 the operation of such Parent Stock Plan, and (z) issuances of securities in connection with grants or awards of stock-based compensation made in accordance with Section 6.1(d) hereof); (ii) other than in the ordinary and usual course of business consistent business, and except for long-term indebtedness incurred in connection with past practicesthe refinancing of existing indebtedness either at its maturity or at a lower cost of funds, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than (x) capital expenditures not in excess of $25,000,000 in the aggregate incurred in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident (whether or not covered by insurance), (y) as required by Law, or (z) in amounts less than $50,000 5,000,000 individually and $250,000 15,000,000 in the aggregate oraggregate; provided, by however, that if either party proposes to make any meanscapital expenditure which requires the written consent of the other party pursuant to this Section 6.1, such other party shall not unreasonably withhold such consent; or (iv) make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity in excess of $15,000,000 in the aggregate;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards of stock-based compensation or other benefits under, amend or otherwise modify, modify any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or employees except (i) for grants or directors awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (except for increases occurring ii) in the ordinary normal and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing annual reestablishment of Compensation and Benefit Plan;
(e) neither it nor any Plans and the provision of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business individual Compensation and Benefit Plans consistent with past practices;
practice for newly hired or appointed officers and employees and the adoption of Compensation and Benefit Plans for employees of new Subsidiaries in amounts and on terms consistent with past practice) or (giii) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.date hereof;
Appears in 1 contract
Interim Operations. (a) The Company and STI each covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (except for subsection (iii) below which will continue after the Effective Time) (unless Parent STI or the Company, as the case may be, shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this AgreementAgreement or in its respective Disclosure Letter or as required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby- laws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; capital stock, or (vD) repurchase, redeem or otherwise acquire acquire, except in the case of STI, in connection with the redemption of outstanding STI Redeemable Warrants or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (i) authorize for issuance knowingly take or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit fail to take any action that if the result of such taking or failure would be to (A) prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or (B) cause any of its representations and warranties herein to become untrue in any material respect; and;
(jiv) neither it nor any of its Subsidiaries will authorize authorize, or enter into any an agreement to do any of the foregoing; and
(v) each shall cause its respective Affiliates not to knowingly take or fail to take any action which it has agreed to do, or not do, herein.
(b) STI and the Company agree that any written approval obtained under this Section 6.1 may be relied upon by the other party if signed by the President or another executive officer of the other party.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof of this Agreement and prior to the Effective Time (unless Parent shall otherwise approve in writing, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) ), the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, and it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (C) as expressly set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend its charter or by-laws, or, subject to the terms of this Agreement, otherwise take any action to exempt any Person (other than Parent or its Subsidiaries) or any action taken by any Person from the Rights Agreement or any Takeover Statute or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(bii) it shall not, (i) issue, sell merge or otherwise dispose of consolidate the Company or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws orSubsidiaries with any other Person, except for any amendment which will not hindersuch transactions among wholly owned Subsidiaries of the Company, delay or make more costly to Parent the Offer restructure, reorganize or the Merger; completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) splitacquire from any other Person outside of the ordinary course of business any asset or group of related assets with a value or purchase price in excess of $1,000,000 individually or $2,500,000 in the aggregate, combine in any transaction or reclassify its outstanding series of related transactions, in each case other than acquisitions pursuant to Contracts as in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, any shares of Capital Stock; capital stock of the Company or any of its Subsidiaries (ivother than the issuance of shares by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company), 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;
(v) create or incur any Encumbrances, individually or in the aggregate, material to the Company or any of its Subsidiaries or on any asset or group of related assets of the Company or any of its Subsidiaries having a value in excess of $500,000 individually or $2,500,000 in the aggregate;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $100,000 individually or $250,000 in the aggregate outstanding at any given time;
(vii) declare, set aside aside, make or pay any dividend or other distribution, payable in cash, stock stock, property or property in otherwise, with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit to any of its Subsidiaries capital stock (except for dividends paid by any direct or indirect Subsidiary of the Company to its stockholders or unit holders on a pro rata basis in the ordinary course of business consistent with past practices) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable into or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cix) neither it nor incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries shall (i) authorize Subsidiaries, except for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than indebtedness for borrowed money incurred in the ordinary and usual course of business consistent with past practicespractices (A) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the terms of the indebtedness being replaced as of the date of such replacement, transferor (B) guarantees by the Company of indebtedness of wholly owned Subsidiaries of the Company complying with clause (A) above;
(x) except as expressly set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, leasemake or authorize any capital expenditures that in the aggregate exceed by more than 15% from the aggregate capital expenditures in such capital budgets in respect of the period from the date of this Agreement to the Closing;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in Contracts entered into the ordinary course under lines of credit in existence business consistent with past practices and (A) terminable by the Company, without penalty, on ninety (90) days or less notice effective on the date hereoflater of September 30, 2014 or ninety (90) days or less after Closing and (B) not involving anticipated required consideration by the Company or any of its Subsidiaries at or after the Closing in excess of $5,000,000;
(xii) enter into any Contract of the type specified in clauses (A); , (iiiG), (I), (J), (K), (L), (M) assumeor (N) of Section 5.1(m);
(xiii) amend, guaranteemodify or terminate any Material Contract, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations (A) terminable by the Company, without penalty, on ninety (90) days or less notice effective on the later of Subsidiaries of September 30, 2014 or ninety (90) days or less after Closing (or, in each case, such longer time period as in effect prior to any such amendment or modification pursuant hereto), and (B) not involving required anticipated additional consideration by the Company incurred or any of its Subsidiaries at or after the Closing in excess of $5,000,000;
(xiv) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles, by Regulation S-X under the Securities Act, or by the Public Company Accounting Oversight Board or Financial Accounting Standards Board;
(xv) settle (x) any litigation or claim or (y) other proceedings before a Governmental Entity, in each case for an amount in excess of $1,000,000 (excluding amounts that may be paid under insurance policies);
(xvi) cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value or cost in excess of $250,000 individually or $2,000,000 in the aggregate;
(xvii) make or change any material Tax election or method of Tax accounting; amend any Tax Return with respect to a material amount of Taxes; settle or otherwise finally resolve any audit or dispute with respect to material amount of Taxes, other than, in each case, in the ordinary course of business; business consistent with past practice;
(ivxviii) transfer, sell, lease, assign, license, surrender, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any part of its assets (including Intellectual Property), licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, except in connection with services or products provided in the ordinary course of business and sales of obsolete assets and except for sales, leases, licenses or other dispositions of any asset or any group of related assets (other than wireless spectrum) with a fair market value not in excess of $250,000 individually or $500,000 in the aggregate, other than pursuant to Contracts as in effect as of the date of this Agreement;
(xix) except as required pursuant to a Benefit Plan or existing written, binding agreements as in effect as of the date of this Agreement, or as otherwise required by applicable Law, (A) other than the payment of regular base salaries, at the rates in effect as of the date of this Agreement or wages and other non-discretionary compensation, make any compensation payments or awards, including the grant of any equity or cash awards, to any director, officer or employee of the Company or any of its Subsidiaries, (B) grant or increase the compensation, severance or other benefits payable or to become payable to any director, officer or employee of the Company or any of its Subsidiaries, (C) adopt, enter into, establish, or materially amend, modify or terminate any Benefit Plan or any employment, individual consulting, collective bargaining, bonus or other incentive compensation, health or other welfare, pension, retirement, severance, deferred compensation or other compensation or benefit plan with, for or in respect of any director, officer or employee of the Company or any of its Subsidiaries that would constitute a Benefit Plan had it been in effect as of the date of this Agreement, (D) materially amend the terms of any outstanding equity-based awards, (E) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or (G) forgive any loans to any directors, officers or employees of the Company or any of its Subsidiaries;
(xx) (A) enter into any line of business in any geographic area other Person than the current lines of business of the Company and its Subsidiaries and products and services reasonably ancillary thereto (including any current line of business and products and services reasonably ancillary thereto in any geographic area for which the Company or any of its Subsidiaries currently holds a FCC License authorizing the conduct of such business, product or service in such geographic area), or (B) except as currently conducted, engage in the conduct of any business in any state which would require the receipt or transfer of an FCC License or any other Permits issued by any Governmental Entity authorizing operation or provision of any communication services or foreign country that would require the receipt or transfer of, or application for, a Permit or FCC License to the extent such license would be reasonably expected to prevent, materially delay or materially impair the consummation of the transactions contemplated herein;
(xxi) file for any Permit or FCC License (A) outside of the ordinary course of business or (B) the receipt of which would, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair consummation of the transactions contemplated herein;
(xxii) assign, transfer, cancel, fail to renew or fail to extend any FCC License or Permit;
(xxiii) change (other than pursuant to Subsidiaries software updates, upgrades and patches) any of the Company ormaterial technology in the Network Assets, customary loans enterprise software or advances to employees billing software used in connection with business-related travel its respective businesses;
(xxiv) except in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modifymodify in any manner any Ground Lease, any Compensation and Benefit Plan Governmental Use Permit, Colocation Agreement, Third Party Colocation Agreement or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;Third Party Cell Site Agreement; or
(exxv) neither it nor any of its Subsidiaries shallagree, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) The Company and Parent shall cooperate in developing language for a program of communications or notices relating to the Merger or the other transactions contemplated by this Agreement to be sent to customers of the Company and its Subsidiaries on or after the date of this Agreement and prior to the Closing. The Company shall not, and shall cause its Subsidiaries not to, send any communications or notices relating to the Merger or the other transactions contemplated by this Agreement to customers of the Company and its Subsidiaries on or after the date of this Agreement and prior to the Closing without the prior written approval of Parent (not to be unreasonably withheld).
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) During the period from the date hereof of this Agreement and prior to continuing until the earlier of the termination of this Agreement or the Effective Time Time, except as set forth in the Disclosure Statement, or unless ADS has consented in writing thereto (unless Parent shall otherwise approve in writing, which approval consent shall not be unreasonably withheld or delayedwithheld), the Company shall, and except as otherwise expressly contemplated by this Agreement):shall cause each of its Subsidiaries to:
(ai) conduct their respective operations according to their usual, regular and ordinary course in substantially the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, same manner as heretofore conducted;
(ii) to the extent consistent therewithwith their respective businesses, it and its Subsidiaries shall use commercially reasonable efforts to preserve its intact their respective business organization intact organizations and goodwill, keep available the services of their respective officers and employees and maintain its existing relations and goodwill satisfactory relationships with customers, suppliers, distributors, creditors, lessors, employees and those persons having business associatesrelationships with them;
(biii) it shall notnot amend their respective Articles or Certificates of Incorporation or By-Laws or comparable governing instruments;
(iv) promptly notify ADS of any Company Material Adverse Effect, any litigation or governmental complaints, investigations or hearings (ior communications indicating that the same may be contemplated), or the breach of any representation or warranty contained herein;
(v) issuepromptly deliver to ADS true and correct copies of any report, sell statement or schedule filed by the Company with the SEC subsequent to the date of this Agreement;
(vi) not (A) except pursuant to the exercise of options, warrants, conversion rights and other contractual rights existing on the date hereof and disclosed pursuant to this Agreement, issue any shares of its capital stock, effect any stock split or otherwise dispose change its capitalization as it existed on the date hereof; (B) grant, confer or award any option, warrant, conversion right or other right not existing on the date hereof to acquire any shares of its capital stock; (C) increase any compensation or subject to Lien (other than Permitted Liens) enter into or amend any employment agreement with any of its Subsidiaries' Capital Stock owned by itpresent or future officers, directors or employees; (iiD) grant any severance or termination package to any employee or consultant, except to the extent consistent with past practices; (E) hire any new employee who shall have, or terminate the employment of any employee who has, an annual salary in excess of $50,000; or (F) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend its charter, bylaws orany existing employee benefit plan in any material respect, except for any amendment changes which will are less favorable to participants in such plans;
(vii) not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (ivA) declare, set aside or pay any dividend payable in cash, stock or property in make any other distribution or payment with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into other ownership interests; or exchangeable (B) directly or exercisable for indirectly, redeem, purchase or otherwise acquire any shares of its Capital Stock; capital stock, or make any commitment for any such action;
(viviii) adopt not enter into any agreement or transaction, or agree to enter into any agreement or transaction, outside the ordinary course of business, including, without limitation, any transaction involving a plan of merger, consolidation, joint venture, license agreement, partial or complete or partial liquidation or dissolution, merger reorganization, recapitalization, restructuring or otherwise restructure a purchase, sale, lease or recapitalize other disposition of a portion of assets or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cix) neither it nor not incur any of its Subsidiaries shall (i) authorize indebtedness for issuance borrowed money or issue, sell or otherwise dispose of or subject to guarantee any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material such indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices practice or issue or sell any debt securities or warrants or rights to acquire any debt securities of others;
(x) continue to make regularly scheduled payments on its existing indebtedness, leases and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; other obligations;
(ivxi) not make any loans to loans, advances or capital contributions to, or investments in, any other Person in excess of $10,000;
(xii) except as described in the Disclosure Statement, not make or commit to made any capital expenditures in excess of $100,000 individually or $225,000 in the aggregate;
(xiii) not apply any of its assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable directly or indirectly to or for the benefit of any affiliate or Related Party or enter into any transaction with any affiliate or Related Party (except for payment of salary and other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel expense reimbursements made in the ordinary course of business consistent with past practicesto Related Parties who are employees, directors or consultants of the Company or its Subsidiaries); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(dxiv) except as may be required not voluntarily elect to comply with applicable law alter the manner of keeping its books, accounts or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay torecords, or enter into change in any employment or severance agreement withmanner the accounting practices therein reflected, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 changes in accounting laws which affect all companies in the business of the Company's employees, including one of its directors, which have been previously disclosed to Parent Company generally and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required those indicated by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the good accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(gxv) neither it nor not grant or make any mortgage or pledge or subject itself or any of its Subsidiaries shall settle properties or compromise assets to any material claims Lien, charge or litigation or terminate or materially amend or modify encumbrance of any of its material Contracts or waive, release or assign any material rights or claims;kind; and
(hxvi) neither it nor any maintain insurance on its tangible assets and its businesses in such amounts and against such risks and losses as are currently in effect.
(b) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, except as set forth in the Disclosure Statement, or unless the Company has consented in writing thereto (which consent shall not be unreasonably withheld), ADS shall, and shall cause each of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;to:
(i) neither it nor conduct their respective operations according to their usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(ii) promptly deliver to the Company true and correct copies of any report, statement or schedule filed by ADS with the SEC subsequent to the date of its Subsidiaries shall take this Agreement;
(iii) promptly notify the Company of any action ADS Material Adverse Effect, any litigation or omit to governmental complaints, investigations or hearings (or communications 48 indicating that the same may be contemplated), or the breach of any representation or warranty contained herein;
(iv) not take any action that would cause result in a failure to maintain the trading of ADS Common Stock on the NASDAQ;
(v) with respect to ADS only (and not its Subsidiaries), not (A) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its representations and warranties herein to become untrue in capital stock or other ownership interests; or (B) directly or indirectly, redeem, purchase or otherwise acquire any material respectshares of its capital stock, or make any commitment for any such action; and
(jvi) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoingextent consistent with their respective businesses, use commercially reasonable efforts to preserve intact their respective business organizations and goodwill.
Appears in 1 contract
Interim Operations. The Company Meritus covenants and agrees as to itself ------------------ and each of its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall agreed to in this Agreement or as DSI may otherwise approve in advance and in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable their best efforts to preserve its all business organization intact and maintain its all existing relations and goodwill with customers, suppliers, distributors, marketing representatives, creditors, lessors, employees and business associates;
(b) neither it nor any of its Subsidiaries shall not, (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it or any of its Subsidiaries' Capital Stock owned by itSubsidiaries in any of its Subsidiaries or other Affiliates; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate or make more costly to Parent the Offer articles of incorporation or the Mergerby-laws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem or otherwise acquire acquire, except in connection with the payment of the exercise price of any option outstanding on the date hereof, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof)property or assets; (ii) purchase, transfer, lease, sell, mortgage, pledge, dispose of or encumber any real property, or effect any improvements or expansions thereon; (iii) other than the sale of inventory in the ordinary and usual course of business, purchase, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any property or assets (including capital stock of any of its Subsidiaries) or incur or modify any indebtedness or other liability; (iv) make or authorize or commit for any capital expenditures other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose (as approved in advance by an authorized representative of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practicesDSI); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment inin any business, through acquisition of assets or stock of any other PersonPerson or entity;
(d) except as may be required to comply with by applicable law or by existing contractual commitmentslaw, and except as provided in Section 6.9 below, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus bonus, severance, incentive or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planemployees;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate enter into any Debt Contracts or materially Other Contracts or modify, amend or modify terminate any of its material Debt Contracts or Other Contracts, or waive, release or assign any material rights or claims;
(hf) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
(g) neither it nor any of its Subsidiaries shall take any action, other than reasonable and usual actions in the ordinary and usual course of business consistent with GAAP and with past practice, with respect to accounting policies or procedures;
(h) neither it nor any of its Subsidiaries shall sell, transfer, assign or abandon any patents or trademarks which are owned or controlled directly or indirectly by Meritus or any of its Subsidiaries;
(i) neither it nor any of its Subsidiaries shall take license or otherwise encumber any action patents or omit to take any action that would cause trademarks which are owned or controlled directly or indirectly by Meritus or any of its representations and warranties herein to become untrue in any material respect; andSubsidiaries;
(j) neither it nor any of its Subsidiaries shall make any modification to employee or customer incentives or trade policies which would reasonably be expected to cause the Company's distributors or end-user customers to increase purchases above those levels normally required to meet their respective needs or cause an increase or decrease in the Company's inventories or Working Capital;
(k) it and its Subsidiaries shall use their best efforts pay and discharge all debts, charges, taxes, assessments, contributions and governmental charges when and as due;
(l) it and its Subsidiaries shall, at all times, comply in all material respects with all laws, rules, regulations, licenses, permits, approvals and orders of any federal, state or local government authority applicable to them;
(m) neither it not its Subsidiaries shall make any expenditure or incur any obligation, without the prior written consent of DSI, which does not arise directly from the proper business expenses of it or its Subsidiaries;
(n) it shall promptly notify DSI in writing of the details of any loss, damage, investigation, action, suit, proceeding, or claim relating to the business of it or its Subsidiaries or which will or might reasonably be expected to have an economic impact in excess of $10,000.00 on the business, properties, assets, goodwill or condition, financial or otherwise, of Meritus or its Subsidiaries;
(o) it and its Subsidiaries shall keep proper books and records in which true and complete entries shall be made of all dealings or transactions of it and its Subsidiaries and Meritus shall furnish to DSI: (i) within fifteen (15) calendar days after the end of each calendar month, monthly unaudited financial statements (including balance sheets, statements of income and loss and statements of cash flow), with footnote disclosure information reasonably acceptable to DSI, and (ii) prior to the Effective Time, draft unaudited financial statements for the calender month preceding the Effective Time;
(p) neither it not its Subsidiaries shall enter into any Debt Contracts or Other Contracts other than in the ordinary course of business consistent with general past practice;
(q) it and its Subsidiaries shall obtain DSI's prior written approval of any and all business decisions which have, or shall in the future have, a material effect on the business of Meritus or any of its Subsidiaries, and for purposes of this Section 6.1(q) only; "material effect" shall be defined as an economic effect of $20,000.00 or more; and
(r) neither it nor its Subsidiaries shall authorize or announce an intention to do any of the actions prohibited in this Section 6.1, or enter into any agreement contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Dsi Toys Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the The business of it the Company and its Subsidiaries shall be managed by the Manager pursuant to the Management Agreement, and shall otherwise be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it The Company shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws orcharter or bylaws, except for any amendment which will not hinder, delay or make the Merger more costly to Parent the Offer or the MergerParent; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub the Purchaser or another wholly-owned Subsidiary of the Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to the Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to non-officer employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 5,000 individually and $250,000 25,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicesconsultants, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(a) ), the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it the Company and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates. Without limiting the generality of the foregoing, from the date hereof to the Effective Time except as set forth in the Company Disclosure Schedule (unless Parent shall otherwise approve in writing and except as otherwise expressly contemplated by this Agreement):
(a) the Company shall not, and shall cause its Subsidiaries not to enter into, terminate, or materially extend or modify any material Contract; provided, further, that neither the Company nor any of its Subsidiaries shall enter into (i) any time charters or bareboat charters having a term of more than sixty days but equal to or less than 12 months without first consulting with Parent or (ii) any time charters or bareboat charters having a term of more than 12 months, consecutive voyage arrangements or pooling arrangements, in each case in this clause (ii), without the prior express written consent of Parent, such consent not to be unreasonably withheld;
(b) it the Company shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the MergerOrganizational Documents; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it the Company nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof)property or assets; (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse make or otherwise become liable authorize or responsible (whether directly, contingently or otherwise) commit for the obligations of any other Person except capital expenditures in amounts greater than $100,000 individually and $1,000,000 in the ordinary course aggregate, other than such capital expenditures made pursuant to new building contracts, drydocking arrangements or Vessel upgrading arrangements, in each case, existing on the date of business consistent with past practices this Agreement and except for obligations of Subsidiaries of the Company incurred explicitly disclosed in the ordinary course of businessCompany's 1999 budget delivered to Parent on March 26, 1999; or (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it the Company nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planemployees;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it Company nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hf) neither it the Company nor any of its Subsidiaries shall make any Tax election or otherwise alter any Tax or accounting practice or procedure, or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
(ig) neither it the Company nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jh) neither it the Company nor any of its Subsidiaries will shall authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve consent in writing, writing (which approval consent shall not be unreasonably withheld or delayed, ) and except as otherwise expressly contemplated by set forth in this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charterOrganizational Documents or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) other than in the case of any direct or indirect wholly owned Subsidiary, split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.165 per Share; (vE) repurchase, redeem or otherwise acquire acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant under the Stock Plans) except as set forth in Section 6.1(a)(iii) of the Company Disclosure Schedule; (B) other than as set forth on Section 6.1(a)(iii)(B) of the Company Disclosure Schedule, products sold to Company Options outstanding on customers in the date hereofordinary and usual course of business (without limitation as to dollar amount) or otherwise in the ordinary and usual course of business and not in an aggregate amount of more than $5,000,000, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness other than tax-exempt indebtedness, indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries or indebtedness in an aggregate amount less than $2,000,000; provided that prior to incurring any indebtedness, if practicable, the Company shall provide Parent with a reasonable right of consultation prior to incurring any such indebtedness; provided, further, that the foregoing right of consultation shall not apply in the case of indebtedness in respect of letters of credit, guarantees or performance bonds or indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries; (D) make or authorize or commit for any capital expenditures other than as set forth on Schedule 6.1(a)(iii) of the Company Disclosure Schedule or which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $5,000,000; provided that prior to making any expenditure not set forth on Schedule 6.1(a)(iii) of the Company Disclosure Schedule, if practicable, the Company shall provide Parent with a reasonable right of consultation prior to making any such expenditure; and (E) by any means, make any acquisition of, or investment in (i) stock of or other interest in, any other Person or (ii) other than except in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment inpractice, assets or stock of any other Person;
(div) except as may be set forth in Section 6.1(a)(iv) of the Company Disclosure Schedule, or as required to comply with applicable law or by existing contractual commitmentsthe terms of this Agreement, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iiA) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salaryPlans except as required by law, wage, bonus or (B) other compensation of any employees or directors (except for increases occurring than in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicespractice and the Company’s compensation budget with respect to employees at a compensation level of less than $80,000 a year, increase the compensation of any employee, (C) hire any employee at a compensation level expected to be more than $100,000 a year;
(gv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any material Tax election or permit file any insurance policy naming it material income Tax Refund or implement or adopt any change in its accounting principles or material accounting practices, in all cases other than as a beneficiary may be required by applicable Laws or loss- payable payee to be canceled or terminatedby GAAP;
(ivii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(jviii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) and except as otherwise expressly set forth in this Agreement):
(i) the business of it and its Subsidiaries shall be conducted in the ordinary course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(ii) it shall not (A) split, combine or reclassify its outstanding shares of capital stock; or (B) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from its direct or indirect wholly owned Subsidiaries;
(iii) it shall not (A) enter into any transaction, other than as contemplated pursuant to this Agreement, to the extent any such transaction would require approval of the stockholders of Parent under applicable law or stock exchange rules; or (B) enter into an agreement relating to any acquisition, merger, consolidation or purchase that would reasonably be expected to (I) impose any material delay in the obtaining of, or significantly increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (II) significantly increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Merger, or (III) significantly increase the risk of not being able to remove any such order on appeal or otherwise;
(iv) amend Parent’s or Merger Sub’s Organizational Documents;
(v) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(vi) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent Acquiror shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(a) and except as required by applicable Laws, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its their business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, key employees and business associatesassociates and keep available the services of its and its Subsidiaries’ present key employees. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Acquiror may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Schedule, it will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its articles of incorporation or by-laws or other applicable governing instruments;
(bii) it shall notmerge or consolidate itself or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries, or restructure, reorganize or completely or partially liquidate;
(iiii) acquire any business or Person by merger or consolidation, purchase or lease of all or substantially all assets, or by any other manner, in a single or series of related transactions;
(iv) issue, sell or otherwise dispose deliver, or authorize the issuance, sale or delivery of, any shares of its capital stock or subject to Lien of any of its Subsidiaries (other than Permitted Liens) any the issuance of shares by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries' Capital Stock owned by it; (ii) amend its charter), bylaws or, except or securities convertible or exchangeable into or exercisable for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; 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;
(ivv) declare, set aside aside, make or pay any dividend or other distribution, payable in cash, stock stock, property or property in otherwise, with respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit to any of its Subsidiaries capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary or distributions made pursuant to Section 6.1(b));
(vi) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable into or exercisable for any shares of its Capital Stock; or capital stock (it being understood that the net settlement of Company Awards including any deemed purchase of Shares in connection therewith shall not be covered by this clause (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent));
(cvii) neither it nor (A) incur any indebtedness for borrowed money, or guarantee such indebtedness of another Person, except pursuant to the existing credit facilities of the Company or its Subsidiaries shall or the credit facilities contemplated in clause (iB) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices practice, (B) enter into new credit facilities other than credit facilities that do not require commitment fees or non-usage fees and except are for obligations aggregate borrowings not in excess of Subsidiaries of $150,000,000, provided that the Company incurred five (5) days prior written notice to Acquiror prior to entry into any such new credit facility, (C) issue or sell any debt securities or other rights to acquire any of its debt securities or of any of its Subsidiaries, or (D) cancel, modify or waive any debts or claims held by the Company or any of its Subsidiaries in the ordinary course of business; (iv) make any loans to any other Person (an aggregate amount greater than $100,000, other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel foreclosures, loan modifications, reformations or extensions in the ordinary course of business consistent with past practices); practice, provided the Company provides Acquiror with five (5) days’ prior written notice to Acquiror of any such modifications, reformations or extensions;
(vviii) make any commitments forexcept as contemplated by the Company plan previously provided by the Company to Acquiror, make or authorize any capital expenditures other than expenditure in amounts less than excess of $50,000 individually and $250,000 200,000 in the aggregate or, by during any means, make any acquisition of, or investment in, assets or stock of any other Person12-month period;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (iix) enter into any new Contract that would have been a material contract as defined in Item 601 of Regulation S-K (a “Material Contract”) had it been entered into prior to the date hereof, except as otherwise specifically permitted in this Section 6.1(a);
(x) make any material changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles;
(xi) settle any litigation or other proceedings before a Governmental Entity, other than settlements involving payments that are not individually in excess of $100,000 or in the aggregate in excess of $500,000 and which are not reasonably likely to establish an adverse precedent or basis for subsequent settlements, provided the Company provides five (5) days prior written notice to Acquiror of any such proposed settlement;
(xii) amend, modify or terminate any Material Contract, except as otherwise specifically permitted in this Section 6.1(a);
(xiii) make any material Tax election;
(xiv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or of its Subsidiaries, including capital stock of any of its Subsidiaries, except any such transactions among it and its wholly owned Subsidiaries and except for Liens pursuant to the Company’s or any of its Subsidiaries’ existing lines of credit or the sale of mortgages in the ordinary course of business consistent with past practice;
(xv) except as required pursuant to agreements or commitments for policies and procedures in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (1) provide any severance or termination pay to, or enter into any employment or severance agreement with, payments to any of its directors, officers or employees or consultants except for of any of its Subsidiaries, (a2) specific arrangements with 13 of increase the Company's employeescompensation, including one bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to officers or employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (of its Subsidiaries, except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than base salary in the ordinary course of business consistent with past practicespractice for any individual who has a base salary that is less than or equal to $100,000 or (3) establish, adopt, amend or terminate any of its benefit plans, except in each case in the ordinary course of business consistent with past practice, or amend the terms of any outstanding equity-based awards; provided, however, that the Company and its Subsidiaries shall be permitted to amend their respective Benefit Plans to comply with section 409A of the Code, but only to the extent that such amendments shall not accelerate the payment of, or increase the underlying benefits provided under, such Benefit Plans;
(gxvi) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause is reasonably likely to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respectArticle VII not being satisfied; andor
(jxvii) neither it nor any of its Subsidiaries will agree, authorize or enter into any agreement commit to do any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement, prior to the Closing Date, the Company shall declare and pay one or more dividends to its stockholders distributing cash in an amount equal to the Company’s estimated “real estate investment trust taxable income” (as such term is used in Section 857 of the Code and reflecting any dividends previously paid during the tax year that would be expected to give rise to a dividends paid deduction for such tax year, but before reduction for the dividend contemplated by this Section 6.1(b)) for the tax year of the Company ending with the Merger, plus any other amounts required to be distributed in order for the Company to qualify as a REIT for such year and to avoid to the extent reasonably possible the incurrence of income or excise tax by the Company.
(c) Prior to making any written or oral communications to any of the directors, officers or employees of the Company or its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company and Acquiror shall provide each other with a copy of the intended communication, the receiving party shall have a reasonable period of time to review and comment on the communication, and the parties hereto shall cooperate in providing any such mutually agreeable communication.
(d) Acquiror covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, key employees and business associates and keep available the services of its and its Subsidiaries’ present key employees. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as the Company may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Acquiror Disclosure Schedule, it will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary and any dividends payable by Acquiror’s real estate investment trust on its outstanding 9.75% Series A Perpetual Cumulative Preferred Stock in accordance with the terms of the charter documents governing such securities);
(iii) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(iv) agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time date on which Purchaser's nominees comprise a majority of the Board of Directors of the Company (unless Parent Praxair shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially its reasonable best efforts to preserve its business organization intact and maintain its existing relations rela- tions and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;; 27
(bii) it shall not, not (iA) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) pledge any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend the Company Charter or its charterby-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital StockShares or Preferred Shares other than regular quarterly or semi- annual cash dividends not in excess of $0.12 per Share and regular quarterly or semi-annual cash dividends on the Preferred Shares; or (vE) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or capital stock except in connection with the ordinary course of operations of the CBI Salaried Employee Stock Ownership Plan (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent1987);
(ciii) neither it nor any of its Subsidiaries shall except as disclosed in Section 7.1(a) of the Company Disclosure Letter (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to Company Options options outstanding on the date hereof)hereof under the Stock Plan or upon conversion of Convertible Preferred Shares; (iiB) other than in the ordinary and usual course of business consistent with past practicesbusi- ness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or encumber any property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)liability; or (vC) make any commitments for, make or authorize any capital expenditures other than existing capital expenditures required to be made pursuant to existing capital projects, as set forth in amounts less than $50,000 individually and $250,000 in Section 7.1(a)(iii) of the aggregate Company Disclosure Letter, which have been previously authorized or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity;
(div) except as may be required to comply with applicable law or by existing contractual commitmentsdisclosed in Section 7.1(a) of the Company Disclosure Letter, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than increases in compensation in the ordinary course 28 of business business, in each case, consistent with past practicespractices with regard to frequency and amount;
(gv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminated;
(i) neither it nor any terminated except in the ordinary and usual course of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectbusiness; and
(jvii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company (a) CPI covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the CPI Merger Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as set forth in Section 6.1(a) of the CPI Disclosure Letter, or as otherwise expressly contemplated by this Agreement, the Asset Purchase Agreement or the Ancillary Agreements):
(ai) the it shall conduct its business of it and its Subsidiaries shall be conducted as a holding company for Company Shares in the ordinary and usual course of business, consistent with past practices andpractice and comply in all material respects with all applicable Laws, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesincluding Environmental Laws;
(bii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any of its Subsidiaries' Capital Stock owned by itCompany Shares; (iiB) amend its charter, certificate of incorporation or bylaws or, except for any amendment which will not hinder, delay or make more costly pursuant to Parent the Offer or the MergerRecapitalization Amendment; (iiiC) split, combine or reclassify its outstanding shares of Capital Stockcapital stock, except pursuant to the Recapitalization Amendment; or (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (vD) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock except pursuant to the Recapitalization Amendment;
(ciii) neither it nor any of its Subsidiaries shall (i) authorize for issuance or not issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any CPI Voting Debt (other than Shares issuable or any material property or assets except pursuant to Company Options outstanding on the date hereof); Recapitalization Amendment;
(iiiv) it shall not incur any material liability or obligation or otherwise engage in any activity or take any action other than in furtherance of the ordinary and usual course consummation of business consistent the transactions pursuant to this Agreement in accordance with past practicesthe provisions of this Agreement; provided, transferhowever, lease, license, guarantee, sell or otherwise dispose that prior to the due adoption of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries this Agreement by holders of the Company incurred Shares constituting the Company Requisite Vote, CPI shall not be prohibited by this clause (iv) from providing information at the Company's request in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal pursuant to clause (B) of the proviso in Section 6.2(a) or from participating in negotiations or discussions by the Company with a Person pursuant to clause (C) of the proviso in Section 6.2(a);
(v) it shall not change in any material respect any of the accounting principles or practices used by it, except as may be required as a result of a change in GAAP; and
(vi) it shall not make any tax election without prior notice to Parent, except in the ordinary course of business; and
(ivvii) make it shall not authorize or enter into an agreement to do any loans of the foregoing.
(b) The Company covenants and agrees as to any other Person itself and its Subsidiaries that, after the date hereof and prior to the Company Merger Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise contemplated by this Agreement, the Company Disclosure Letter, the Asset Purchase Agreement or the Ancillary Agreements):
(i) it shall operate the business of it and its Subsidiaries (other than to Subsidiaries of such portion as comprises the Company or, customary loans or advances to employees in connection with business-related travel Business) only in the ordinary course of business business, consistent with past practicespractice and in material compliance with all applicable Laws, and, to the extent consistent with such operation, use commercially reasonable efforts to: (A) preserve the present business organization intact; and (B) preserve any beneficial business relationships with all customers, suppliers, Government Entities, and others having business dealings with the business of it and its Subsidiaries (other than such portion as comprises the Business);
(ii) it shall maintain (A) the material assets of the Company and its Subsidiaries (other than the Purchased Assets) in such condition and repair consistent with past practice, and (B) insurance upon all of the material assets of the Company and its Subsidiaries (other than the Purchased Assets) and with respect to the conduct of the business of the Company and its Subsidiaries (other than the Business) in full force and effect, comparable in amount, scope, and coverage to that in effect on the date of this Agreement;
(iii) it shall not (A) authorize, issue, deliver, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries that are not Transferred Subsidiaries (as defined in the Asset Purchase Agreement); (B) amend its or its Subsidiaries' or certificate of incorporation or bylaws or equivalent organizational documents; (C) split, combine or reclassify (including causing the conversion of Class B Common Shares to Common Shares pursuant to Article FOURTH, Section 2(e)(1)(iii) of the certificate of incorporation of the Company) its or its Subsidiaries' outstanding shares of capital stock; (D) declare, set aside, make or pay any dividend payable in cash, stock, property or otherwise in respect of any capital stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than, in the case of the Company, regular quarterly cash dividends not in excess of $0.08 per Company Share per quarter (paid to record holders of stock on a date set consistent with past practice); or (vE) make any commitments forrepurchase, make redeem or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 otherwise acquire, except, in the aggregate orcase of the Company in each case set forth above, by in connection with the Stock Plans, or permit any meansof its Subsidiaries to purchase or otherwise acquire, make any acquisition shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iv) neither it nor any of its Subsidiaries that are not Transferred Subsidiaries shall (A) issue, authorize, deliver, grant, sell, pledge, dispose of or encumber any shares of, or investment insecurities convertible into or exchangeable or exercisable for, assets or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Company Voting Debt (other Personthan, in the case of the Company, Company Common Shares issuable pursuant to Company Options or Stock Awards outstanding on the date hereof under the Stock Plans); (B) lease or otherwise dispose of, or grant or sell any option or right to purchase that portion of the Company's business that does not include the Purchased Assets, except in the ordinary course of business, consistent with past practice; or (C) sell, assign, transfer, convey or otherwise dispose of any material asset or right of the Company or subject any of the assets of the Company (other than the Purchased Assets) to any further material lien, charge, license, mortgage, pledge, security interest or similar encumbrance (each, an "Encumbrance"), other than (i) Permitted Encumbrances (as defined in the Asset Purchase Agreement) (ii) as reflected, reserved or otherwise disclosed in the Audited Pro Forma Financial Statements, the Interim Pro Forma Financial Statements or the financial statements included in or incorporated by reference in the Company Reports filed prior to the date of this Agreement or (iii) in the ordinary course of business, consistent with past practice;
(dv) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or arrangement that would be a Compensation and Benefit Plan if it were in effect on the date hereof, or pay or promise to pay, any bonus, profit-sharing or special compensation to the Employees or Directors or make any increase in the compensation or accelerate benefits payable or to become payable to any of such Employees or Directors, or hire, without the salaryconsent of Parent which consent shall not be unreasonably withheld, wageany employee who would be entitled to an annual base salary greater than $100,000, bonus or other compensation except (A) for changes that are required by applicable Law, (B) to satisfy obligations under the terms of any employees or directors Compensation and Benefit Plan in effect as of the date hereof, (except C) for increases occurring in compensation that are made in the ordinary and usual course of business, business consistent with past practice (which shall include normal periodic performance reviews and related compensation and benefit increases), but not which increases their effective dates for corporate officers are set forth in Section 6.1(b)(v) of the Company Disclosure Letter and (D) for employment arrangements for or grants of awards, other than equity-based awards, to newly hired employees (hired in accordance with this paragraph) in the ordinary course of business consistent with past practice; provided, however, that nothing in this clause (v) shall permit any general across-the-board increasesaction that would otherwise be prohibited by clause (iv)(A) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planabove;
(evi) except in the ordinary course of business consistent with past practice or in connection with the Assets Purchase, neither it nor any of its Subsidiaries shall enter into or terminate any Company Contract, or make any change in any of its Company Contracts;
(vii) neither it nor any of its Subsidiaries shallshall make any tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated without prior notice to Parent, except in the ordinary and usual course of business or in connection with the Assets Purchase;
(viii) neither it nor any of its Subsidiaries shall (A) acquire (by merger, consolidation or acquisition of stock or assets) or sell (by merger, consolidation or sale of stock or assets) any corporation, partnership or other business organization or division thereof or any assets in each case, which are material to the Company and its Subsidiaries taken as a whole other than in connection with the Assets Purchase, (B) incur any long-term indebtedness for money borrowed or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans, advances or capital contributions to, or investments in any other person (other than a Subsidiary or Transferred Subsidiary of the Company or in connection with the Assets Purchase), in each case, other than (x) in the ordinary course of business consistent with past practice or (y) any letter of credit entered into in the ordinary course of business consistent with past practice, (C) authorize any new capital expenditures which are, in the aggregate, in excess of $500,000 other than unforeseen capital expenditures that may be necessary to operate the business 45 consistent with past practice or (D) authorize any new commitments for taurolidine spending which are, in the aggregate, in excess of $500,000 (it being understood that commitments made prior to the date hereof with respect to pre-clinical work or clinical studies are not covered by these limitations);
(ix) neither it nor any of its Subsidiaries shall change in any material respect any of the accounting principles or practices used by it, except as may be required as a result of a change in law SEC guidelines or in GAAP, change any of the accounting principles or practices used by it;
(fx) neither it nor any of its Subsidiaries shall revalue in pay, discharge or satisfy any respect any of its material assets, including writing down the value of inventory liabilities or writing-off notes or accounts receivableObligations, other than any payment, discharge or satisfaction (A) in the ordinary course of business consistent with past practicespractice, (B) in accordance with the terms of any such liabilities or Obligations, (C) which does not involve an amount in excess of $100,000, or (D) as set forth in Section 6.1(b)(x) of the Company Disclosure Letter;
(gxi) neither it nor any of its Subsidiaries shall settle or compromise any material claims litigation pending against the Company (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation or terminate where the amount paid (less the amount reserved for such matters by the Company or materially amend covered by insurance) in settlement or modify any of its material Contracts compromise in each case does not exceed $100,000 or waive, release or assign any material rights or claims$500,000 in the aggregate;
(hxii) neither it nor any of its Subsidiaries shall make effectuate a "plant closing" or "mass layoff," as those terms are defined in WARN or any Tax election state or permit local law, affecting in whole or in part any insurance policy naming it as a beneficiary site of employment, facility, operating unit or loss- payable payee to be canceled or terminatedemployee;
(ixiii) neither it nor any of its Subsidiaries shall take any action adopt a plan of complete or omit to take any action that would cause partial liquidation, dissolution, consolidation, restructuring, recapitalization, merger or other reorganization of the Company or any of its representations Subsidiaries (other than the Mergers and warranties herein to become untrue in any material respect; andthe Assets Purchase);
(jxiv) neither it nor any of its Subsidiaries will shall involuntarily separate any Employee from employment with the Company without due cause; and
(xv) neither it nor any of its Subsidiaries shall authorize or enter into any an agreement to do any of the foregoing.
(c) The provisions of this Section 6.1 notwithstanding, nothing in this Agreement shall be construed or interpreted to prevent the Company or any Subsidiary from (i) entering into the Asset Purchase Agreement and the Ancillary Agreements or complying with any of the terms thereof (ii) subject to Section 8.8, of the Asset Purchase Agreement making, accepting or settling intercompany advances to, from or with one another; (iii) subject to Section 6.21(b), causing any Subsidiary to pay or distribute to the Company all cash, money market instruments, bank deposits, certificates of deposit, other cash equivalents, marketable securities and other investment securities then owned or held by such Subsidiary; (iv) subject to Section 6.21(b), causing any Subsidiary which owns or holds any Purchased Assets to transfer such assets to the Company or its nominee prior to the Closing by means of a dividend, distribution in kind or other transfer without consideration; or (v) subject to Section 6.21(b), engaging in any other transaction incident to the normal cash management procedures of the Company and its Subsidiaries, including, without limitation, short-term investments in bank deposits, money market instruments, time deposits, certificates of deposit and bankers' acceptances and borrowings for working capital purposes and purposes of providing additional funds to Subsidiaries made, in each case, in the ordinary course of business, consistent with past practice; provided, however, that neither the Company nor any of its Subsidiaries may take any action pursuant to this Section 6.1(c) to the extent such action would have a material adverse effect on the Tax liability of the Company or any of its Subsidiaries without the prior written consent of Parent, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Agreement and Plan of Merger (MCC Acquisition Holdings Corp)
Interim Operations. The Between signing of this Agreement and Closing, Seller shall cause each of the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent Purchaser shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):hereby or set forth in the Seller Disclosure Schedule) to:
(a) other than consummation of the Scolari Acquisition, conduct its business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees suppliers and business associatesemployees;
(b) it shall not, not amend its Organizational Documents;
(c) not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, encumber any shares of its Capital Stock the Company or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares ofcapital stock, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of the Company or its Capital Stock Subsidiaries capital stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof)class; (ii) transfer, sell, dispose of or encumber any material portion of its assets, other than sales of inventory in the ordinary course of business and other than amounts in cash equal to the Pre-Closing Distributions, provided that, CHF 1’000’000 of the Pre-Closing Distributions will not be distributed by the Company or its Subsidiaries until Closing and will be available for funding of the Reserve Amount at Closing; or (iii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell incur any Indebtedness or otherwise dispose of issue any debt securities or subject to any Lien (other than Permitted Liens) any other property guarantee or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except other than as may be required to comply with by applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall not (i) enter into increase the compensation payable or to become payable to Group Employees; (ii) grant any new agreements or commitments for any rights to severance or termination pay to, or enter into any employment or severance agreement with, with any of its directors, officers or employees or consultants except for Group Employee (a) specific arrangements other than in connection with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, Scolari Acquisition); or (iiiii) terminate, establish, adopt, enter into, make any new grants into or awards under, amend or otherwise modifyamend, any Compensation and Benefit Plan collective bargaining agreement or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor except in the ordinary course of business, not (i) enter into, amend or terminate any of contract or agreement that would be material to the Company and its Subsidiaries shall, except as may be required taken as a result of a change whole (other than in law connection with the Scolari Acquisition); or in GAAP, change (ii) exclusively license to any of the accounting principles or practices used by itthird party any material Owned Intellectual Property;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than consummation of the Scolari Acquisition, not acquire by merger, consolidation, acquisition of assets or equity interests or any similar transaction any corporation, partnership, limited liability company or other business organization or all or substantially all of the assets of any such entity;
(g) except in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall business, not settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claimslitigation;
(h) neither it nor any of its Subsidiaries shall not make any Tax election material change, other than as required by Swiss GAAP or permit any insurance policy naming it as a beneficiary U.S. GAAP, to its accounting principles or loss- payable payee to be canceled or terminatedprocedures;
(i) neither it nor except as described in the funds flow chart attached as Annex C, not make any of payment or distribution to Seller or its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectAffiliates; and
(j) neither it nor any of its Subsidiaries will not authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after from the date hereof and prior of this Agreement until the Effective Time, except as specifically permitted by any other provision of this Agreement (or as set forth in Section 7.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Effective Time (unless Parent shall otherwise approve in writingCompany or except with Parent’s prior written approval, which approval shall not be unreasonably withheld or delayedwithheld, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective reasonable best efforts to protect and preserve the scope and breadth of its assets and the Company Intellectual Property and to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, outside counsel, clinical trial investigators or managers of its clinical trials, employees and business associatesconsultants. Without limiting the generality of the foregoing, and as an extension thereof, the Company shall not and shall not permit any of its Subsidiaries to, from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent:
(a) amend or propose to amend the certificate of incorporation or bylaws or other comparable governing instruments of the Company or any of its Subsidiaries or amend, modify or waive any provision of the Rights Agreement;
(b) it shall notacquire (including, (i) issuewithout limitation, sell by merger, consolidation, or otherwise dispose acquisition of stock, assets or subject to Lien (Intellectual Property or any other than Permitted Liensbusiness combination) any corporation, partnership, other business organization or any division thereof or any assets or interest in any assets from any other Person in excess of its Subsidiaries' Capital Stock owned by it; $500,000 individually or $1,000,000 in the aggregate;
(ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iiic) split, combine or reclassify its outstanding shares of Capital Stock; capital stock of the Company nor enter into any agreement with respect to voting of any of its capital stock, or any securities convertible into or exchangeable for such shares;
(ivd) declare, set aside or pay any dividend or other distribution, payable in cash, stock stock, property or property otherwise, in respect of the capital stock of the Company or any Capital Stock; of its Subsidiaries, other than dividends from its wholly-owned Subsidiaries;
(ve) repurchasepurchase, redeem or otherwise acquire acquire, except in connection with the Company Option Plan, the Preferred Stock or the AZ Note, or permit any of its Subsidiaries to purchase or otherwise acquire, acquire any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cf) neither it nor transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any material property or assets or interest therein of the Company or any of its Subsidiaries shall (including (i) authorize Intellectual Property material to the business of the Company and its Subsidiaries, but excluding non-exclusive Intellectual Property licenses granted in the ordinary course of business to third parties, and (ii) capital stock of any of the Company’s Subsidiaries);
(g) incur any indebtedness for issuance borrowed money or issue any debt securities or warrants or other rights to acquire debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, as an accommodation or otherwise, the obligations of any other Person, in the case of any of the foregoing, involving an aggregate principal amount or potential guaranteed amount in excess of $500,000 or otherwise incur or modify any material indebtedness or liability;
(h) issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets of the Company or any of its Subsidiaries (other than Shares in accordance with the Rights Agreement and other than shares issuable pursuant to Company Options options and other stock-based awards outstanding on the date hereof under the Stock Plan or upon conversion of the Convertible Notes, the AZ Note or the Preferred Stock);
(i) make or agree to make any capital expenditures other than any such expenditure (A) not in excess of $200,000 individually or $1,000,000 in the aggregate or (B) in conformance with the Draft ET Meeting 2006 Plan Review, dated December 7, 2005, furnished to Parent prior to the date hereof); ;
(j) waive any benefits of, agree to modify in any respect, fail to enforce or consent to any matter with respect to which consent is required under any (i) standstill or similar agreement containing provisions prohibiting a third party from purchasing the capital stock or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries and to which the Company or any of its Subsidiaries is a party or (ii) other than confidentiality, non-solicitation or similar agreements to which the Company or any of its Subsidiaries is a party, excluding, however, waivers of confidentiality relating to non-material Intellectual Property in the ordinary and usual course of business consistent with past practice;
(k) make any change in accounting practices, transferpolicies or principles, leaseexcept as required by GAAP or by Law or a Governmental Entity as concurred to by the Company’s independent auditors;
(l) enter into, licensemodify, guaranteeamend or terminate, sell or otherwise dispose waive, release or assign any material rights or claims under (i) any Contract pursuant to which the Company, any of its Subsidiaries or subject any other party thereto has material continuing obligations, rights or interests relating to research, development, clinical trial, distribution, supply, manufacturing, marketing or co-promotion of, or collaboration with respect to, any Lien product or product candidate for which the Company or any of its Subsidiaries is currently engaged in research and development (excluding (A) clinical study agreements with clinical trial sites, (B) non-disclosure agreements (other than Permitted Liensnon-disclosure, standstill and exclusivity agreements relating to potential business combinations or acquisitions involving the Company or any of its Subsidiaries or similar transactions), (C) Contracts with independent contractors or vendors providing for services to the Company or any of its Subsidiaries (other property than material manufacture or assets supply services Contracts or incur material Contracts with contract research organizations for clinical trials related services), and (D) customary material transfer Contracts (other than material transfer Contracts for pre-clinical products or modify clinical products of the Company or any material indebtedness of its Subsidiaries with commercial, pharmaceutical or other liability biotechnology companies), in the case of each of the foregoing (except for additional borrowings A), (B), (C) or (D), entered into in the ordinary course under lines of credit in existence on the date hereofbusiness consistent with past practice); or (ii) any Contract pursuant to which the Company, any of its Subsidiaries or any other party thereto has, or will have, material continuing obligations, rights or interests;
(m) make any material loan, advance, capital contribution to, or investment in, any Person other than (i) loans, advances or capital contributions to, or investments in, wholly-owned Subsidiaries of the Company and (ii) loans, advances or capital contributions to, or investments in, any other Person in an amount not in excess of $250,000 in the aggregate;
(n) enter into, modify, amend or terminate any Contract or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (i) adversely affect the Company (or, following the Merger, Parent or any Affiliates of Parent) in any material respect, (ii) impair the ability of the Company to perform its obligations under this Agreement in any material respect, (iii) assumeprevent or materially delay or impair the consummation of the Merger and the other transactions contemplated by this Agreement or (iv) limit or restrict the Surviving Corporation, guaranteeany Affiliate of the Surviving Corporation or any of their successors and assigns from engaging or competing in any line of business, endorse or otherwise become liable or responsible (whether directlyincluding the research, contingently or otherwise) for the obligations development and commercialization of any antibody or therapeutic agent directed at a specific antigen or other Person target or in any therapeutic area, or in any geographic area;
(o) pre-pay any long-term debt or accelerate or delay any material payments or the collection of payment due to the Company, except in the ordinary course of business consistent with past practices and practice;
(p) unless reasonably determined to be beneficial to the Company’s prosecution of its patent or Trademark applications, (i) grant, extend, amend (except for obligations of Subsidiaries as required in the diligent prosecution of the Company incurred Intellectual Property), waive or modify any material rights in or to the ordinary course Company Intellectual Property, Co-Owned Intellectual Property or Licensed Intellectual Property, (ii) fail to diligently prosecute the Company’s and its Subsidiaries’ patent applications, or (iii) fail to exercise a right of business; renewal or extension under any material Licensed Intellectual Property;
(ivq) make any loans to any other Person (other than to Subsidiaries i) increase the number of employees of the Company orand the Company Subsidiaries by more than 4.5%, customary loans based on the number of employees employed by the Company and the Company Subsidiaries as of the date hereof, or advances (ii) enter into an employment agreement or relationship, other than an “at will” employment relationship, with any Person;
(r) except as required pursuant to employees existing written, binding agreements in connection with business-related travel effect prior to the date hereof and set forth in Section 5.8 of the Company Disclosure Letter, as provided in Section 4.5 of this Agreement or as otherwise required by applicable Law or tax qualification requirement, (i) grant or provide or adopt a plan intended to grant or provide any retention, severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or employee of the Company or any of its Subsidiaries, except for increases in base salary in the ordinary course of business consistent with past practices); or (v) make any commitments forpractice for employees who are not officers that do not exceed, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate oron average, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 5.0% of the Company's employeesbase salary of those receiving such salary increases, including one of its directorsand that the increases are not being given as promotional increases, which have been previously disclosed to Parent and (biii) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, terminate any Compensation and Company Benefit Plan or increase or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the salaryvesting or payment, wageor fund or in any other way secure the payment, bonus of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other compensation of assumptions used to calculate funding obligations with respect to any employees Company Benefit Plan or directors (except for increases occurring to change the manner in which contributions to such plans are made or the ordinary and usual course of business, basis on which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shallsuch contributions are determined, except as may be required as a result by GAAP or applicable Laws; or (vi) issue or forgive any loans to directors, officers, contractors or employees of a change in law the Company or in GAAP, change any of the accounting principles or practices used by itits Subsidiaries;
(fs) neither it nor communicate with Company employees regarding the compensation, benefits or other treatment they will receive in connection with the proposed Merger, unless any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business such communications are consistent with past practicesprior directives or documentation provided to the Company by Parent (in which case, the Company shall provide Parent with prior notice of and the opportunity to review and comment upon any such communications);
(gt) neither it nor make any of its Subsidiaries shall material Tax election or settle or compromise any material claims liability for Taxes, change any annual Tax accounting period (except as required by Law), change any Tax accounting method (except as required by Law), file any material amended Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund or litigation consent to any extension or terminate waiver of the statute of limitations period applicable to any material Tax claim or materially amend assessment;
(u) in respect of any Contract, grant rights thereunder to, or modify accept the designation thereunder of, any newly proposed antigen, which grant or designation would limit or restrict Parent or any of its material Contracts Affiliates (other than, following the Effective Date, the Company and its Subsidiaries) from researching, developing or waivecommercializing any antibody or other therapeutic agent directed at such antigen, release for any therapeutic area or assign in any material rights geographic area, unless and only to the extent that any such failure to make such grant or claims;acceptance will constitute a breach under such Contract and provided that the Company has provided to Parent at least 10 business days' prior written notice of any such grant or acceptance, which notice shall identify the antigen proposed to be designated, unless such disclosure is prohibited by the terms of such Contract; or
(hv) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve consent in writing, writing (which approval consent shall not be unreasonably withheld or delayed, ) and except as otherwise expressly contemplated by set forth in this Agreement):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charterOrganizational Documents or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) other than in the case of any direct or indirect wholly owned Subsidiary, split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect A-24 wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.165 per Share; (vE) repurchase, redeem or otherwise acquire acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant under the Stock Plans) except as set forth in Section 6.1(a)(iii) of the Company Disclosure Schedule; (B) other than as set forth on Section 6.1(a)(iii)(B) of the Company Disclosure Schedule, products sold to Company Options outstanding on customers in the date hereofordinary and usual course of business (without limitation as to dollar amount) or otherwise in the ordinary and usual course of business and not in an aggregate amount of more than $5,000,000, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness other than tax-exempt indebtedness, indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries or indebtedness in an aggregate amount less than $2,000,000; provided that prior to incurring any indebtedness, if practicable, the Company shall provide Parent with a reasonable right of consultation prior to incurring any such indebtedness; provided, further, that the foregoing right of consultation shall not apply in the case of indebtedness in respect of letters of credit, guarantees or performance bonds or indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such wholly owned Subsidiaries; (D) make or authorize or commit for any capital expenditures other than as set forth on Schedule 6.1(a)(iii) of the Company Disclosure Schedule or which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $5,000,000; provided that prior to making any expenditure not set forth on Schedule 6.1(a)(iii) of the Company Disclosure Schedule, if practicable, the Company shall provide Parent with a reasonable right of consultation prior to making any such expenditure; and (E) by any means, make any acquisition of, or investment in (i) stock of or other interest in, any other Person or (ii) other than except in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment inpractice, assets or stock of any other Person;
(div) except as may be set forth in Section 6.1(a)(iv) of the Company Disclosure Schedule, or as required to comply with applicable law or by existing contractual commitmentsthe terms of this Agreement, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (iiA) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salaryPlans except as required by law, wage, bonus or (B) other compensation of any employees or directors (except for increases occurring than in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicespractice and the Company's compensation budget with respect to employees at a compensation level of less than $80,000 a year, increase the compensation of any employee, (C) hire any employee at a compensation level expected to be more than $100,000 a year;
(gv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any material Tax election or permit file any insurance policy naming it material income Tax Refund or implement or adopt any change in its accounting principles or material accounting practices, in all cases other than as a beneficiary may be required by applicable Laws or loss- payable payee to be canceled or terminatedby GAAP;
(ivii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(jviii) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) and except as otherwise expressly set forth in this Agreement):
(i) the business of it and its Subsidiaries shall be conducted in the ordinary course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(ii) it shall not (A) split, combine or reclassify its outstanding shares of capital stock; or (B) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from its direct or indirect wholly owned Subsidiaries;
(iii) it shall not (A) enter into any transaction, other than as contemplated pursuant to this Agreement, to the extent any such transaction would require approval of the stockholders of Parent under applicable law or stock exchange rules; or (B) enter into an agreement relating to any acquisition, merger, consolidation or purchase that would reasonably be expected to (I) impose any material delay in the obtaining of, or significantly increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (II) significantly increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Merger, or (III) significantly increase the risk of not being able to remove any such order on appeal or otherwise;
(iv) amend Parent's or Merger Sub's Organizational Documents;
(v) neither it nor any of its Subsidiaries shall take any action or omit to take any action that it reasonably expects would cause any of its representations and warranties herein to become untrue in any material respect; and
(vi) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company (a) Each of the Vendors, jointly and severally, covenants and agrees as that during the Interim Period the Business shall be run in accordance with the following provisions:
(i) during the Interim Period the representatives of the Purchasers shall be entitled to itself ------------------ have access to and its Subsidiaries thatbe present at the Business premises of the Vendors at all times during the Vendors' reasonable business hours;
(ii) during the Interim Period the Vendors shall not, after without the date hereof and prior written consent of the Purchasers, such consent not to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement)::
(aA) permit any of the business of it and its Subsidiaries shall Purchased Assets to be conducted in the ordinary and usual course consistent with past practices and, subjected to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesany Encumbrance;
(bB) it shall notsell, (i) issue, sell transfer or otherwise dispose of any of the Purchased Assets;
(C) grant any increase in the benefits, rate of wages, salaries, or subject bonuses for Employees;
(D) make any change in any method of accounting practice applicable to Lien the Business;
(other than Permitted LiensE) cancel or reduce any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly insurance coverage relating to Parent the Offer Purchased Assets or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentBusiness;
(cF) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject commit to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less expend more than $50,000 individually and $250,000 10,000 in the aggregate or, by with respect to any means, make any acquisition of, or investment in, assets or stock capital expenditure of any other Personthe Business;
(dG) except as may be required to comply with applicable law acquire (by merger, amalgamation, consolidation or by existing contractual commitmentsacquisition of shares or assets) any corporation, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus partnership or other compensation of any employees business organization or directors (except for increases occurring in the ordinary and usual course of businessdivision thereof, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableor, other than in the ordinary course of business consistent with past practicesand within the limits specified herein, purchase any property or assets of any other individual or entity;
(gH) neither it nor incur any obligations of any kind in excess of $100,000 in the aggregate in respect of the Business; or
(I) authorize or propose any of its Subsidiaries shall settle the foregoing, or compromise any material claims or litigation or terminate or materially amend enter into or modify any of its material Contracts contract, agreement, commitment or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement arrangement to do any of the foregoing; and
(iii) the Vendors shall:
(A) use their commercially reasonable efforts to keep available the services of the Employees and to maintain their relations and goodwill with the suppliers, customers, distributors and any others having business relations with the Business; and
(B) immediately upon becoming aware of the existence of:
1. any notice from, proceeding before or order of any governmental entity requiring it to comply with or take action under any Environmental Law,
2. any notice from a lender asserting a violation or breach of any loan covenant or any other provision of any financing agreement, or
3. any state of affairs respecting the Leased Premises, Purchased Assets or Business which could reasonably be expected to give rise to future environmental liabilities, the imposition of any fine, or the shutting down of the Business for any period of time, notify the Purchasers in writing and provide details of any actions taken in response.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries Subsidiary that, after the date hereof and prior to the Effective Time (Time, unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, it shall comply with all of the covenants provided in this Section 5.1 (provided, however, with respect to the covenants in subsections (c)(v), (f), (g), (k), (l), and (m) only, Company shall comply with such covenant unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, it being agreed that Parent's approval shall be deemed to have been given if Parent does not provide to the Company written notice of its objection within three(3) Business Days of written notice from the Company), except as otherwise expressly contemplated by this Agreement):Agreement :
(a) the business of it and its Subsidiaries Subsidiary shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries Subsidiary shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Subsidiary's Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay charter or make more costly to Parent the Offer or the Mergerbylaws; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries Subsidiary to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; (vi) form, organize or capitalize any Subsidiary; or (vivii) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentSub;
(c) neither it nor any of its Subsidiaries Subsidiary shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares ofof its Capital Stock, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)liability; (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of businessPerson; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, Subsidiary or customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 10,000 individually and $250,000 50,000 in the aggregate (unless and to the extent fully paid for in advance by a customer of the Company) or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries Subsidiary shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 required as a condition to closing of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, Merger or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries Subsidiary shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any its Subsidiary shall, except as may be required under GAAP in connection with the audit of its Subsidiaries shall the 2002 Financial Statements (as defined in Section 6.2(l)) or the preparation of the Company Reports after the date hereof, in each case in the ordinary course of business consistent with past practice, revalue in any respect any of its material assets, including writing writing-down the value of inventory or writing-off notes or accounts receivable, or make any adjustment in any accrual or reserve other than in the ordinary course of business consistent with past practices; provided, however, no adjustments greater than $100,000 in the aggregate shall be made in the Company's PECFA reserve;
(g) neither it nor any of its Subsidiaries Subsidiary shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims, except (i) PECFA claims where the difference between the claim value and the settlement amount is less than $25,000 and (ii) other claims or litigation less than $10,000 if such settlement or compromise would be in excess of any reserve or accrual on the Balance Sheet with respect to such claim;
(h) neither it nor any of its Subsidiaries Subsidiary shall make any Tax election or, to the extent within the control of the Company or its Subsidiary, permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries Subsidiary shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and;
(j) neither it nor any of its Subsidiaries Subsidiary will authorize or enter into any agreement to do any of the foregoing;
(k) neither it nor its Subsidiary shall enter into any agreement to perform work reimbursable under the PECFA program unless, as a part of all agreements for such work, it expressly disclaims in writing any obligation to guarantee or reimburse any amounts not paid by the State of Wisconsin under such program;
(l) neither it nor its Subsidiary shall enter into any agreement to provide services having a value of, or with projected revenues over the life of the project, greater than $100,000 and not on the Company's standard terms and conditions; and
(m) neither it nor its Subsidiary shall enter into any agreement or arrangement pursuant to which it grants any customer or any other person a license or other rights in any Intellectual Property, invention, development or improvement to pre-existing Intellectual Property. Nothing in this subsection shall prevent the Company from vesting in a customer the rights to project data and reports generated in the course of performing services for that customer.
Appears in 1 contract
Sources: Merger Agreement (Envirogen Inc)
Interim Operations. The (a) Subject to Section 6.1.A., the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, that after the date hereof Second Amendment Date and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(bii) it the Company shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charterarticles of incorporation or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock (other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.255 per Share and regular quarterly cash dividends on the preferred and preference stock of its Subsidiaries); or (vE) repurchase, redeem or otherwise acquire (except for (I) mandatory sinking funds obligations existing on the date hereof and (II) open market repurchases pursuant to the terms of the Company's Direct Stock Purchase Plan and Dividend Reinvestment Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it the Company nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than (I) Shares issuable pursuant to Company Options options and other rights outstanding on the date hereofhereof under the Stock Plans, issuances of additional options or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans and issuances of Shares pursuant to options granted after the date hereof pursuant to the Stock Plans and (II) Shares issuable pursuant to the terms of the outstanding Feline Prides); (iiB) (I) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its coal fines property or assets, or, (II) except as identified on Section 6.1(a)(iii) of the Company Disclosure Letter, other than in the ordinary and usual course of business consistent with past practicesand other than sales not in excess of $10,000,000 in the aggregate or $1,000,000 in respect of any transaction or series of related transactions, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof)assets; (iiiC) assumemake or authorize or commit for any capital expenditures or operation and maintenance expenditures in excess of 100% of those contemplated to be spent pursuant to the year 1999, guarantee, endorse 2000 or otherwise become liable or responsible (whether directly, contingently or otherwise2001 capital appropriations/spending budgets set forth in Section 6.1(a) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)Disclosure Letter; or (vD) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of, or other interest in, any other Person or entity in excess of $10,000,000 in the aggregate or $3,000,000 in respect of any other Persontransaction or series of related transactions;
(div) except as may be required to comply with applicable law or by existing contractual commitmentsset forth in Section 6.1(a)(iv) of the Company Disclosure Letter, neither it the Company nor any of its Subsidiaries shall (iA) enter into accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates consistent with past practice or (B) change any new agreements significant accounting principle, practice or commitments for any severance or termination pay tomethod, or enter into any employment or severance agreement with, except to the extent required by U.S. GAAP as advised by the Company's regular independent accountants and after consultation with Parent;
(v) neither the Company nor any of its directors, officers Subsidiaries shall take or employees fail to take any action that is reasonably likely to make any representation or consultants except for (a) specific arrangements with 13 warranty of the Company's employeesCompany contained herein inaccurate in any material respect at, including one or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect;
(vi) except as required by applicable Law, an existing collective bargaining agreement or other Contract identified in Section 6.1(a)(vi) of the Company Disclosure Letter, neither the Company nor any of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans (other than issuances of additional options, performance shares or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans, provided, that any such additional options, performance shares or rights to acquire Shares shall not vest in connection with the Merger and the other transactions contemplated by this Agreement), or except as required by any existing contract with a non-officer employer increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (employees, except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(evii) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change by applicable law, an existing collective bargaining agreement or other Contract identified in law or in GAAP, change any Section 6.1(a)(vii) of the accounting principles or practices used by it;
(f) Company Disclosure Letter, neither it the Company nor any of its Subsidiaries shall revalue in grant any respect severance or termination pay to, or enter into any employment or severance agreement with any director or officer of it or such Subsidiaries, provided, that the foregoing shall not require the Company to violate any of its material assets, including writing down obligations existing prior to the value date hereof as set forth in Section 5.1(h) of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicesCompany Disclosure Letter;
(gviii) neither it the Company nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hix) neither it the Company nor any of its Subsidiaries shall make any Tax election (other than in the ordinary and usual course or as is required by Law) or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminatedterminated except in the ordinary and usual course of business;
(ix) neither it the Company nor any of its Subsidiaries shall take make any action filing (other than in the ordinary and usual course) with the MPSC, SEC or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectMPSC; and
(jxi) neither it the Company nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(i) the business of Parent and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(ii) it shall not (A) amend its articles of incorporation or by-laws; (B) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend payable, in cash, stock or property in respect of any capital stock, other than dividends from its direct or indirect wholly owned Subsidiaries and other than regularly quarterly cash dividends not in excess of $0.515 per share of Parent Common Stock and regularly quarterly cash dividends on the preferred and preference stock of its Subsidiaries; or (D) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of Parent Common Stock or any securities convertible into or exchangeable or exercisable for any shares of Parent Common Stock (other than repurchases, redemptions or other acquisitions which are made at the then-prevailing market price of Parent Common Stock on the NYSE and which in the aggregate do not exceed ten percent of the shares of Parent Common Stock outstanding as of the date hereof);
(iii) neither Parent nor any of its Subsidiaries shall, (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of Parent Common Stock (other than (I) shares of Parent Common Stock issuable pursuant to options outstanding on the date hereof under the Parent Stock Plan, issuances of additional options or rights to acquire shares of Parent Common Stock granted pursuant to the terms of the Parent Stock Plan as in effect on the date hereof in the ordinary and usual course of the operation of such Parent Stock Plan and issuances of shares of Parent Common Stock pursuant to options granted after the date hereof pursuant to the Parent Stock Plan and (II) issuances of Parent Common Stock, or securities convertible with or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, shares of Parent Common Stock, to a third-party on arms-length terms not in excess of 20% of the number of shares of Parent Common Stock outstanding as of the date hereof) or (B) acquire "Beneficial Ownership" (as such term is defined in the Rights Agreement) of any Shares;
(iv) neither Parent nor any of its Subsidiaries shall take or fail to take any action that is reasonably likely to make any representation or warranty of such party contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect; and
(v) neither Parent nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (MCN Energy Group Inc)
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after (a) From the date hereof and prior until the Closing Date, Seller shall (or, with respect to the Effective Time (unless Parent shall otherwise approve in writingAssets that are not Seller Operated Assets, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use its commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customerscause the operator of such Assets in which it owns working interests to):
(i) not abandon any Well on any Lease capable of commercial production, suppliersor release or abandon all or any part of the Assets capable of commercial production, distributors, creditors, lessors, employees and business associatesor release or abandon all or any portion of the Leases without Purchaser’s written consent;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charternot cause the Assets to be developed, bylaws or, except for any amendment which will not hinder, delay maintained or make more costly to Parent the Offer or the Merger; operated in a manner materially inconsistent with prior operation;
(iii) splitnot commence or agree to participate in any operation on the Seller Operated Assets anticipated to cost in excess of one hundred thousand and NO/100 Dollars ($100,000.00) per operation, combine or reclassify its outstanding shares any operation on the Assets not operated by Seller anticipated to cost in excess of Capital Stock; one hundred thousand and NO/100 Dollars ($100,000) per operation, net to Seller’s interest, without Purchaser’s written consent (except emergency operations, operations required under presently existing contractual obligations, and operations undertaken to avoid any penalty provision of any applicable agreement or order);
(iv) declarenot create any lien, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness security interest or other liability encumbrance with respect to the Assets (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereofPermitted Encumbrances); (iii) assume, guaranteeor, endorse or otherwise become liable or responsible (whether directlywithout Purchaser’s written consent, contingently or otherwise) enter into any agreement for the obligations sale, disposition or encumbrance of any other Person of the Assets, or dedicate, sell, encumber or dispose of any oil and gas production, except in the ordinary course of business on a contract which is terminable on not more than thirty (30) days’ notice except production sold under a contract listed on Exhibit A-3;
(v) not agree to any alterations in the contracts included in or relating to a material portion of the Assets or enter into any material new contracts relating to the Assets (other than contracts terminable on not more than thirty (30) days’ notice) without Purchaser’s written consent;
(vi) maintain in force all insurance policies covering the Assets;
(vii) maintain the Leases in full force and effect and comply with all express or implied covenants contained therein (provided that this covenant shall not be deemed to expand Seller’s title warranties beyond those expressly contained in this Agreement);
(viii) furnish Purchaser with copies of all AFEs in excess of one hundred thousand dollars ($100,000.00), net to Seller’s interest, received or issued by Seller prior to the Closing;
(ix) not liquidate, dissolve, recapitalize or otherwise wind up its business in any respect as it relates to or affecting the Assets;
(x) not change its accounting methods, policies or practices, in each case as it relates to the Assets, except as required by applicable law;
(xi) not cancel or waive any claims or rights of material value;
(xii) not commence, settle or propose to settle any Proceedings related to the Assets;
(xiii) not take any action, or fail to take any action, which action or failure to act will or could reasonably be expected to lead to the termination or material modification of any permits necessary to operate the Assets as presently conducted;
(xiv) not agree, whether in writing or otherwise, to take or omit to take any action inconsistent with the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement, from and after the date of this Agreement, until Closing, Seller shall:
(i) provide Purchaser with access (or, where Seller is not an operator, use its commercially reasonable efforts to arrange for access) to the Assets for inspection thereof at the sole cost, risk and expense of Purchaser;
(ii) use reasonable efforts to obtain any and all necessary consents, waivers (including waiver of preferential purchase rights), permissions and approvals of third parties or governmental authorities in connection with the sale and transfer of the Assets other than approvals of federal lease assignments to Purchaser;
(iii) cause to be filed all reports required to be filed by Seller with governmental authorities relating to the Assets;
(iv) provide prompt notice to Purchaser of any notice received by Seller of a default, claim, obligation or suit which affects any of the Assets; and
(v) promptly notify Purchaser of any event, condition, or occurrence which results in any of the representations and warranties made herein to be untrue.; and
(vi) carry on its business, in the ordinary course, substantially as presently conducted and substantially consistent with past practices practice and except for obligations of Subsidiaries use commercially reasonable efforts to maintain and preserve intact the business organization and the value of the Company incurred Assets and to maintain the books of account and Records in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The (a) Except as set forth in Section 6.1 of the Company Disclosure Letter, the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which such approval shall not to be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) Agreement and except as required by applicable Laws), the Company’s business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries the Company shall use commercially its reasonable best efforts to preserve its business organization organizations intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees Employees, sales representatives and business associatesassociates and keep available the services of the Company’s present Employees and agents. Without limiting the generality of the foregoing, and in furtherance thereof, from the date hereof until the Effective Time, except (A) as otherwise expressly required by this Agreement or applicable Law, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not:
(i) adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments;
(bii) it shall notmerge or consolidate the Company with any other Person, or 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;
(iiii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $250,000 in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practicesgrant, transfer, lease, license, guarantee, sell encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee, or encumbrance of, any shares of or subject to any Lien capital stock of the Company (other than Permitted Liensthe issuance of shares in respect of the exercise of Company Options outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plan as in effect as of the date of this Agreement), or securities convertible or exchangeable into, exercisable for or with a value measured by reference to 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;
(v) any other property or assets create or incur or modify any Lien material indebtedness or other liability (except for additional borrowings in to the ordinary course under lines of credit in existence Company on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries assets of the Company incurred having a value in excess of $250,000;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than in the ordinary course of business; ) in excess of $100,000 in the aggregate;
(ivvii) make incur any loans indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any other Person debt security of the Company, except for indebtedness that will constitute Funded Debt as of the Closing;
(other than to Subsidiaries viii) except as set forth in the capital budgets in Section 6.1(a)(viii) of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business Disclosure Letter and consistent with past practices); or (v) make any commitments fortherewith, make or authorize any capital expenditures other than expenditure in amounts less than $50,000 individually and excess of $250,000 in the aggregate or, by during any means, make any acquisition of, or investment in, assets or stock of any other Persontwelve (12)-month period;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (iix) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which Contract that would have been previously disclosed a Material Contract had it been entered into prior to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planthis Agreement;
(ex) neither it nor make any of its Subsidiaries shallchanges with respect to accounting policies or procedures, except as may be required as a result of a change by changes in law or in GAAP, change any of the applicable generally accepted accounting principles or practices used by itprinciples;
(fxi) neither it nor settle any actions, suits, claims, hearings, arbitrations, investigations or other proceedings before a Governmental Entity for an amount in excess of its Subsidiaries shall revalue $100,000 or any obligation or liability of the Company in any respect any excess of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, such amount;
(xii) other than in the ordinary course of business consistent with past practicespractice, (a) amend, modify or terminate any Material Contract or (b) cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $100,000;
(gxiii) neither it nor (A) make, change, or rescind any Tax election, (B) file any amended Tax Return, (C) adopt or change any method or period of its Subsidiaries shall Tax accounting, (D) settle or compromise any claim, audit, assessment or dispute relating to Taxes; (E) surrender any claim for a refund of Taxes; (F) enter into any closing agreement relating to Taxes; (G) file any Tax Return that is inconsistent with past practice unless as otherwise required by applicable Law; (H) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business); or (I) take any other action related to Taxes which is reasonably likely to result in a material claims increase in the Tax liability of the Company, or, in respect of any taxable period (or litigation portion thereof) ending after the Closing Date, the Tax liability of the Parent or terminate the Surviving Corporation;
(xiv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or materially allow to lapse or expire or otherwise dispose of any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company, except in connection with services provided in the ordinary course of business and sales of obsolete assets and except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $250,000 in the aggregate, other than pursuant to Contracts in effect prior to the date hereof; provided, that with respect to Intellectual Property, the foregoing shall be limited to granting non-exclusive licenses in the ordinary course of business consistent with past practice with a fair market value under the foregoing threshold;
(xv) assign or grant an exclusive license of any material right in any Intellectual Property of the Company necessary or useful for the manufacture, use, sale, offer for sale or export of any Medical Device or that otherwise enables a third party to compete with the Company with respect to the manufacture or sale of any product that competes with any Medical Device;
(xvi) except as required pursuant to existing written, binding agreements in effect prior to the date hereof, as set forth in Section 5.1(j)(i) of the Company Disclosure Letter, or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any director, officer, employees or consultants of the Company, (B) increase in any manner the compensation or consulting fees, bonus, pension, welfare, fringe, severance, termination pay or other benefits of, pay any bonus to, any current or former director, officer, employee or consultant (who is a natural person) of the Company, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Benefit Plan, (D) become a party to, establish, adopt, commence participation in, amend or terminate any Benefit Plan or any arrangement that would have been a Benefit Plan had it been entered into prior to this Agreement, (E) take any action to accelerate the vesting, lapsing of its material Contracts restrictions or waivepayment in respect of any award or benefit provided pursuant to any Benefit Plan, release (F) fund or assign in any material rights other way secure the payment of compensation or claimsbenefits under any Benefit Plan, (G) hire any employee or engage any consultant (who is a natural person), (H) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (I) forgive any loans or issue any loans to any current or former directors, officers, employees or consultants (who are natural persons) of the Company, or (J) terminate the employment of any employee other than for cause;
(hxvii) neither it nor become a party to, establish, adopt, amend or commence participation in any of its Subsidiaries shall make any Tax election collective bargaining agreement or permit any insurance policy naming it as other agreement with a beneficiary labor union, works council or loss- payable payee to be canceled or terminatedsimilar organization;
(ixviii) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause reasonably be expected to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respect; andArticle VII not being satisfied;
(jxix) neither it nor engage in (A) any trade loading practices or any other promotional sales or discount activity or other practice with the intent and effect of accelerating to pre-Closing periods sales to the trade or otherwise that would otherwise be expected (in the ordinary course of business) to occur in post-Closing periods, (B) any practice with the intent and effect of accelerating collections to pre-Closing periods receivables that would otherwise be expected (in the ordinary course of business) to be in post-Closing periods, (C) any practice with the intent and effect of postponing to post-Closing payments by the Company that would otherwise be expected (in the ordinary course of business) to be made in pre-Closing periods, or (D) any promotional sales, discount activity, deferred revenue activity or inventory overstocking or understocking activity, in each case in this clause (D) in a manner outside the ordinary course of business;
(xx) sell, transfer or otherwise move any Inventory from the Company other than in the ordinary course of business or hold, or take any action to facilitate or permit its Subsidiaries will distributors to hold, more than ninety (90) days of Inventory at any time at or prior to the Closing other than in the ordinary course of business;
(xxi) form a Subsidiary; or
(xxii) agree, authorize or enter into any agreement commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the officers, employees or consultants of the Company pertaining to compensation or benefit matters that are affected by the Transactions, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) The Company shall (i) consult with Parent in connection with any proposed meeting with the FDA or any other Governmental Entity relating to any Medical Device, (ii) promptly inform Parent of, and provide Parent with a reasonable opportunity to review, any material filing proposed to be made by or on behalf of the Company, and any material correspondence or other material communication proposed to be submitted or otherwise transmitted to the FDA or any other Governmental Entity by or on behalf of the Company, (iii) keep Parent promptly informed of (A) any material communication (written or oral) with or from the FDA or any other Governmental Entity and (B) any material communications (written or oral) received from any Person relating to the Intellectual Property of the Company, (iv) promptly inform Parent and provide Parent or Merger Sub with a reasonable opportunity (but no more than three (3) business days) to comment, in each case, prior to making any material change to any study protocol, adding any new trial, making any material change to a manufacturing plan or process, making any material change to a development timeline or initiating, or making any material change to, promotional or marketing materials or activities relating to any Medical Device, and (v) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s compliance with any and all relevant Laws, compliance programs, and procedures, and give due consideration to any resulting recommendations provided by Parent’s representative.
(d) The Company shall use reasonable best efforts through the Closing Date to obtain any and all agreements, in duly executed form, necessary to effect the assignment to the Company of any Intellectual Property rights arising from services performed for the Company by all Employees of, and all consultants and independent contractors to, the Company who have contributed in any material respect to the creation or development of any Intellectual Property owned by the Company.
(e) Notwithstanding the foregoing, nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations, finances and employees.
(f) Parent shall not knowingly take or permit any action that is reasonably likely to prevent the consummation of the Merger.
Appears in 1 contract
Sources: Merger Agreement (Conmed Corp)
Interim Operations. The Company covenants and agrees (a) During the Pre-Closing Period, except (i) as to itself ------------------ and its Subsidiaries thatotherwise contemplated by this Agreement, after (ii) as set forth in Section 5.2(a) of the date hereof and prior to the Effective Time Seller Disclosure Schedule, (unless Parent iii) as Purchaser shall otherwise approve agree in writing, writing in advance (which approval consent shall not be unreasonably withheld withheld, delayed or delayedconditioned), (iv) as required by any Contract or Permit which has been disclosed to Purchaser prior to the date of this Agreement, (v) as required by applicable Law or GAAP or (vi) as required by the COVID-19 Measures, Seller Parent (x) shall conduct, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and shall cause its Subsidiaries shall be conducted to conduct, the Business in the ordinary and usual course consistent with past practices andOrdinary Course, (y) to the extent consistent therewithwith clause (x), it shall use, and cause its Subsidiaries shall use Affiliates to use, commercially reasonable efforts to maintain and preserve its business organization intact the current organization, material assets, Permits (other than Shared Permits) and maintain its existing relations relationships and goodwill with of key Business Employees, customers, suppliers, distributorsregulators and others having material business relationships with the Business and (z) without limiting the generality of the foregoing, creditorsshall not, lessorsand shall cause each of its Subsidiaries not to, employees and business associatesin each case in relation to the conduct of the Business:
(i) sell, pledge, dispose of, grant, transfer, encumber or authorize the issuance, sale, pledge, disposition, grant, transfer, encumbrance or exercise of any Sold Securities;
(bii) it shall notsell, (i) issuelease, sell license, transfer or otherwise dispose of or subject to Lien any (A) Transferred Assets other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itBusiness IP or inventory sold in the Ordinary Course; (iiB) amend its charter, bylaws material Business IP or, except for within the scope of the Business, any amendment which will not hinderlicensed Business IP, delay other than non-exclusive licenses granted in the Ordinary Course or make more costly to Parent abandonment or lapse of Registered Business IP in the Offer Ordinary Course; or the Merger; (C) Owned Real Property or Leased Real Property;
(iii) splitacquire any material assets or material business of another Person (whether by merger, combine consolidation, acquisition of stock or reclassify its outstanding shares assets or otherwise) other than (A) in the Ordinary Course or (B) pursuant to existing Contracts in existence on the date of Capital Stock; this Agreement and provided to Purchaser;
(iv) (A) amend or propose to amend the Organizational Documents of the Sold Company or (B) cause the Sold Company to declare, set aside or pay any dividend payable or distribution to any Person (except any such cash dividends or distributions in cash, stock or property in respect amounts reasonably necessary to facilitate the elimination of any Capital Stock; Intercompany Accounts as contemplated by this Agreement);
(v) repurchase, redeem or otherwise acquire grant or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien Encumbrance (other than Permitted LiensEncumbrances) on any shares ofTransferred Asset or incur any indebtedness for borrowed money outstanding or any guarantee for such indebtedness of another Person or issue or sell or have outstanding any debt securities or warrants or other rights to acquire any debt security of the Sold Company, or securities convertible into or exchangeable or exercisable in each case, that would be an Assumed Liability, except for, or optionsin each case, warrants(A) Intercompany Accounts among the Seller and the Sold Company to be eliminated in accordance with Section 5.20, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (iiB) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except Indebtedness for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company borrowed money incurred in the ordinary course Ordinary Course, (C) indebtedness in replacement of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business existing indebtedness for borrowed money on terms substantially consistent with past practices); or more beneficial than the indebtedness being replaced or (vD) make any commitments for, make indebtedness that will be repaid or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in extinguished at or prior to the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonClosing;
(dvi) except (A) as may be required to comply with by the terms of the Benefit Plans currently in effect, or (B) as otherwise required by applicable law Law, (y) materially increase the compensation or by existing contractual commitmentsconsulting fees, neither it nor any of its Subsidiaries shall (i) enter into any new agreements bonus, pension, welfare, fringe or commitments for any other benefits, severance or termination pay toof any Business Employee, or enter (z) amend in any material respect any Assumed Plan, in each case, other than (1) changes to Benefit Plans that are not Assumed Plans that are not targeted at Business Employees, (2) changes in connection with any annual renewal or reenrollment of health and welfare plans and (3) annual salary (and corresponding bonus) increases not to exceed 3% in the aggregate for the U.S. (or the applicable country salary increase budget as determined by Seller Parent), individual market-competitive salary adjustments to retain critical talent, and job level promotions due to changes in individual job responsibilities;
(vii) other than as contemplated by Section 6.1(a), transfer any Business Employee into or out of the Sold Company, or transfer the employment of any employment employee to a position in which such employee would no longer be a Business Employee;
(viii) settle any material Proceeding principally affecting the Business other than if the Damages resulting from such waiver, release, assignment settlement or severance agreement with, compromise involves solely the payment of cash and such amount is paid prior to the Closing;
(ix) make any change in any method of accounting or accounting practice or auditing practice applicable to the Business other than changes (A) as may be initiated by Seller Parent with respect to its business generally or (B) as may be appropriate to conform to GAAP or applicable Law;
(x) either (i) accelerate collection of any account receivable relating to the Business in advance of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicesdue date, or (ii) terminatedelay payment of any account payable relating to the Business beyond its due date, establishin each case, adoptwith the primary purpose of affecting the calculation of the Estimated Purchase Price to be set forth in the Estimated Closing Statement;
(xi) adopt any partial or complete plan of liquidation, dissolution or winding down with respect to the Sold Company or Seller;
(xii) except as required by applicable Law or as contemplated by this Agreement, make or change any material Tax election, adopt or change any method of Tax accounting, amend any Tax Returns or settle any Tax claim, in each case, to the extent such action would both (A) be outside of the Ordinary Course and (B) reasonably be expected to have the effect of increasing the Tax liability of Purchaser for any period ending after the Closing Date;
(xiii) in each case other than in the Ordinary Course, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify in any of its material Contracts respect or terminate any Material Contract (or any Contract that would be a Material Contract if entered into prior to the date hereof) or Transferred Lease, or otherwise waive, release or assign any material rights rights, claims or claims;benefits thereto; or
(hxiv) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement or obligation to do undertake any of the foregoing.
(b) Nothing contained in this Agreement shall give either Party, directly or indirectly, the right to control or direct the other Party’s operations prior to the Closing Date.
Appears in 1 contract
Interim Operations. (a) The Company and STI each covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (except for subsection (iii) below which will continue after the Effective Time) (unless Parent STI or the Company, as the case may be, shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this AgreementAgreement or in its respective Disclosure Letter or as required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby- laws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; capital stock, or (vD) repurchase, redeem or otherwise acquire acquire, except in the case of STI, in connection with the redemption of outstanding STI Redeemable Warrants or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (i) authorize for issuance knowingly take or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit fail to take any action that if the result of such taking or failure would be to (A) prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or (B) cause any of its representations and warranties herein to become untrue in any material respect; and;
(jiv) neither it nor any of its Subsidiaries will authorize authorize, or enter into any an agreement to do any of the foregoing; and
(v) each shall cause its respective Affiliates not to knowingly take or fail to take any action which it has agreed to do, or not do, herein.
(b) STI and the Company agree that any written approval obtained under this Section 6.1 may be relied upon by the other party if signed by the Chief Executive Officer or another executive officer of the other party.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this AgreementAgreement or the Stock Option Agreement or set forth in Section 6.1 of the Company Disclosure Schedule):
(a) the business of it its and its Subsidiaries Subsidiaries's businesses shall be conducted in the ordinary and usual course consistent with past practices and(it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, product extension or otherwise) the business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or to enter into or engage in new lines of business without Parent's prior written approval);
(b) to the extent consistent therewith, with (a) above it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, reinsurers, distributors, creditors, lessors, employees and business associates;
(bc) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its chartercharter or by-laws or amend, bylaws or, modify or terminate the Rights Agreement except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Mergeras contemplated by Section 5.1(q)(ii); (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) authorize, declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly dividends paid by the Company on its Common Shares not in excess of $0.11 per share and regular quarterly dividends paid by the Company on its Preferred Shares in accordance with the Company's Articles of Incorporation; or (v) repurchase, redeem or otherwise acquire acquire, except in connection with any of the Company Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentstock;
(cd) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than Shares issuable pursuant to Company Options options outstanding on the date hereofhereof under any of the Company Stock Plans or upon conversion of the Preferred Shares or Convertible Notes); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;,
(de) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans, other than awards made in the normal course under the Management Incentive Plan in respect of 1997 performance and grants of up to 20,000 restricted Common Shares to be made in January 1998 under the year 2000 Tenure Award Program, or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it);
(f) neither it nor any of its Subsidiaries shall revalue in pay, discharge, settle or satisfy any respect any of its material assetsclaims, including writing down the value of inventory liabilities or writing-off notes obligations (absolute, accrued, asserted or accounts receivableunasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations legally due and payable and arising in the ordinary and usual course of business, claims arising under the terms of products, contracts or policies issued by the Company Insurance Subsidiaries in the ordinary and usual course of business consistent with past practicesand such other claims, liabilities or obligations as shall not exceed $5 million in the aggregate;
(g) neither it nor any of its Subsidiaries shall make or change any Tax election, settle or compromise any material claims audit, file any amended tax returns or litigation permit any insurance policy naming it as a beneficiary or terminate loss-payable payee to be canceled or materially amend or modify any terminated except in the ordinary and usual course of its material Contracts or waive, release or assign any material rights or claimsbusiness;
(h) neither it nor any of its Subsidiaries shall make enter into any Tax election agreement containing any provision or permit covenant limiting in any insurance policy naming it as a beneficiary material respect the ability of the Company or loss- payable payee any Subsidiary or affiliate to be canceled (A) sell any products or terminatedservices of or to any other person, (B) engage in any line of business or (C) compete with or to obtain products or services from any person or limiting the ability of any person to provide products or services to the Company or any of its Subsidiaries or affiliates;
(i) neither it nor any of its Subsidiaries shall enter into any new quota share or other reinsurance transaction (A) which does not contain standard cancellation and termination provisions, (B) which, except in the ordinary course of business,
(j) neither it nor any of the Company Insurance Subsidiaries will alter or amend in any material respect their existing investment guidelines or policies;
(k) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jl) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (American Bankers Insurance Group Inc)
Interim Operations. (a) The Company covenants shall, and agrees as to itself ------------------ and shall cause each of its Subsidiaries thatto, from and after the date hereof of this Agreement and prior to the Effective Time (unless Parent and Merger Sub shall otherwise approve in writing, which with such approval shall not to be unreasonably withheld withheld, conditioned or delayed), and except as otherwise expressly contemplated required by this Agreement):
(a) the Agreement or as required by applicable Law, conduct its business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices Ordinary Course of Business and, to the extent consistent therewith, it shall use and cause each of its Subsidiaries shall to use commercially their respective reasonable best efforts to to, preserve its and their business organization organizations intact and maintain its existing satisfactory relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and business associatesassociates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of and in furtherance of the foregoing sentence, from the date of this Agreement until the Effective Time, except as otherwise expressly required by this Agreement, required by applicable Law, or as approved in writing by Parent, with such approval not to be unreasonably withheld, conditioned or delayed, the Company shall not and shall cause its Subsidiaries not to:
(i) adopt or propose any change in its Organizational Documents other than pursuant to the transactions contemplated by this Agreement;
(b) it shall not, (iii) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practicesgrant, transfer, lease, license, guarantee, sell Encumber, or otherwise dispose enter into any Contract or understanding with respect to the voting of, any shares of capital stock of the Company (including, for the avoidance of doubt, Company Shares) or subject of any of its Subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of capital stock, or any options, warrants or other rights of any kind to acquire any Lien (such shares of capital stock or such convertible or exchangeable securities, other than Permitted Liensthe issuance of shares of capital stock (A) any other property by a Wholly Owned Subsidiary of the Company to the Company or assets another Wholly Owned Subsidiary of the Company, or incur (B) in respect of Preferred Shares, Company Options, Warrants and Management Options outstanding as of the date of this Agreement or modify any material indebtedness or other liability issued after the date of this Agreement in each case in accordance with their terms, (except for additional borrowings C) as applicable, the Incentive Plan as in the ordinary course under lines of credit in existence effect on the date hereof); of this Agreement, and (iiiD) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other PersonSeries C Financing;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (iiii) enter into any new agreements Contracts or commitments other arrangements between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Company Shares (on a fully diluted basis) or shares of common stock of any of their respective Affiliates, on the other hand, except for compensatory arrangements entered into in the Ordinary Course of Business with Company Employees and transactions with its Affiliates;
(iv) create or incur any severance Encumbrance that is not incurred in the Ordinary Course of Business on any of the assets of the Company or termination any of its Subsidiaries;
(v) declare, set aside, make or pay toany dividend or other distribution, payable in cash, stock, property or enter into otherwise, with respect to any employment of its capital stock, except for (A) dividends paid by any Wholly Owned Subsidiary to the Company or severance agreement withto any other Wholly Owned Subsidiary of the Company;
(vi) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its directorscapital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(vii) amend, officers modify, terminate, cancel or employees let lapse an Insurance Policy, unless simultaneous with such termination, cancellation or consultants except lapse, replacement self-insurance programs are established by the Company or one or more of its Subsidiaries or replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing are in full force and effect, in each case, providing coverage equal to or greater than the coverage under the terminated, canceled or lapsed Insurance Policies for (a) specific arrangements with 13 substantially similar premiums, as applicable, as in effect as of the Company's employeesdate of this Agreement;
(viii) make any changes with respect to the legal structure of the Company and its Subsidiaries or to their accounting policies or procedures, including one except as required by changes in GAAP;
(ix) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute, surrender any right to claim a refund or take any action which would be reasonably expected to result in an increase in the Tax liability of the Company or its Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent, Merger Sub or their Affiliates;
(x) cancel, abandon or otherwise allow to lapse or expire any Company Intellectual Property Rights, except in the Ordinary Course of Business with respect to Intellectual Property Rights that are not material to any business of the Company or any of its directors, which have been previously disclosed to Parent and Subsidiaries;
(bxi) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminatebecome party to, establish, adopt, enter intoamend, make commence participation in or terminate any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus collective bargaining agreement or other compensation of any employees agreement with a labor union, labor organization, works council or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plansimilar organization;
(exii) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of fail to maintain policies and procedures designed to ensure compliance with the accounting principles or practices used by itFCPA and Other Anti-Bribery Laws;
(fxiii) neither it nor any of fail to maintain policies and procedures designed to ensure compliance with the Export and Sanctions Regulations in each jurisdiction in which the Company and its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory operate or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicesare otherwise subject to jurisdiction;
(gxiv) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit fail to take any action that would cause is reasonably expected to result in any of its representations and warranties herein the conditions to become untrue the Merger set forth in any material respectArticle VIII not being satisfied; andor
(jxv) neither it nor any of its Subsidiaries will agree, authorize or enter into any agreement commit to do any of the foregoing.
(b) Nothing set forth in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time or give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time.
(c) Parent shall, and shall cause each of its Subsidiaries to, from and after the date of this Agreement and prior to the Effective Time (unless the Company shall otherwise approve in writing, with such approval not to be unreasonably withheld, conditioned or delayed), and except as otherwise expressly required by this Agreement or as required by applicable Law, conduct its business in the Ordinary Course of Business and, to the extent consistent therewith, shall use and cause each of its Subsidiaries to use their respective reasonable best efforts to, preserve its and their business organizations intact and maintain satisfactory relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of and in furtherance of the foregoing sentence, from the date of this Agreement until the Effective Time, except as otherwise expressly required by this Agreement, required by applicable Law, required by the express terms of any material contract made available to Company, as approved in writing by Company, with such approval not to be unreasonably withheld, conditioned or delayed, or set forth in the corresponding subsection of Section 7.1(c) of the Parent Disclosure Letter, Parent shall not and shall cause its Subsidiaries not to:
(i) adopt or propose any change in its Organizational Documents;
(ii) merge or consolidate Parent or any of its Subsidiaries with any other Person, except for any such transactions solely among Wholly Owned Subsidiaries of the Company, or 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;
(iii) acquire assets from any other Person;
(iv) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, Encumber, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of capital stock of Parent or of any of its Subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of capital stock, or any options, warrants or other rights of any kind to acquire any such shares of capital stock or such convertible or exchangeable securities, other than the issuance of shares of capital stock by a Wholly Owned Subsidiary of Parent to Parent or another Wholly Owned Subsidiary of Parent;
(v) enter into any Contracts or other arrangements between Parent or any of its Subsidiaries, on the one hand, and any director or officer of Parent or any Person beneficially owning five percent or more of the outstanding Company Shares or shares of common stock of any of their respective Affiliates;
(vi) create or incur any Encumbrance that is not incurred in the Ordinary Course of Business on any of the assets of Parent or any of its Subsidiaries;
(vii) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from Parent and any of its Wholly Owned Subsidiaries);
(viii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for (A) dividends paid by any Wholly Owned Subsidiary to Parent or to any other Wholly Owned Subsidiary of Parent;
(ix) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(x) incur any material Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security);
(xi) enter into any Contract other than Contracts entered into in the Ordinary Course of Business with payment obligations not to exceed $50,000;
(xii) cancel, modify or waive any debts or claims held by Parent or any of its Subsidiaries or waive any material rights;
(xiii) amend, modify, terminate, cancel or let lapse an Insurance Policy, unless simultaneous with such termination, cancellation or lapse, replacement self-insurance programs are established by Parent or one or more of its Subsidiaries or replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing are in full force and effect, in each case, providing coverage equal to or greater than the coverage under the terminated, canceled or lapsed Insurance Policies for substantially similar premiums, as applicable, as in effect as of the date of this Agreement;
(xiv) other than settlement of trade accounts payable in the Ordinary Course of Business, settle or compromise any Proceeding for an amount in excess of $20,000 individually or $50,000 in the aggregate during any calendar year;
(xv) make any changes with respect to the legal structure of the Company and its Subsidiaries or to their accounting policies or procedures, except as required by changes in GAAP;
(xvi) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute, surrender any right to claim a refund or take any action which would be reasonably expected to result in an increase in the Tax liability of the Company or its Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent, Merger Sub or their Affiliates;
(xvii) transfer, sell, lease, divest, cancel, allow to lapse or expire, or otherwise dispose of or transfer, or permit or suffer to exist the creation of any Encumbrance upon, any assets (tangible or intangible, including any Intellectual Property Rights and Programs), Licenses, product lines or businesses of the Company or any of its Subsidiaries, including capital stock of any of its Subsidiaries, except in connection with services provided in the Ordinary Course of Business or sales of obsolete assets;
(xviii) cancel, abandon or otherwise allow to lapse or expire any Intellectual Property Rights, except in the Ordinary Course of Business with respect to Intellectual Property Rights that are not material to any business of the Company or any of its Subsidiaries;
(xix) become party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, labor organization, works council or similar organization;
(xx) fail to maintain policies and procedures designed to ensure compliance with the FCPA and Other Anti-Bribery Laws;
(xxi) fail to maintain policies and procedures designed to ensure compliance with the Export and Sanctions Regulations in each jurisdiction in which the Company and its Subsidiaries operate or are otherwise subject to jurisdiction;
(xxii) take any action or fail to take any action that is reasonably expected to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(xxiii) agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, that after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writingapprove, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(ai) the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatesassociates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(bii) it the Company shall not, not (iA) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (iiB) amend its charterarticles of incorporation or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer or the MergerRights Agreement; (iiiC) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivD) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock (other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.255 per Share and regular quarterly cash dividends on the preferred and preference stock of its Subsidiaries); or (vE) repurchase, redeem or otherwise acquire (except for (I) mandatory sinking funds obligations existing on the date hereof and (II) open market repurchases pursuant to the terms of the Company's Direct Stock Purchase Plan and Dividend Reinvestment Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it the Company nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than (I) Shares issuable pursuant to Company Options options and other rights outstanding on the date hereofhereof under the Stock Plans, issuances of additional options or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans and issuances of Shares pursuant to options granted after the date hereof pursuant to the Stock Plans and (II) Shares issuable pursuant to the terms of the outstanding Feline Prides); (iiB) (I) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its coal fines property or assets, or, (II) except as identified on Section 6.1(a)(iii) of the Company Disclosure Letter, other than in the ordinary and usual course of business consistent with past practicesand other than sales not in excess of $100,000,000 in the aggregate or $30,000,000 in respect of any transaction or series of related transactions, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets; (C) make or authorize or commit for any capital expenditures or operation and maintenance expenditures in excess of 110% of those contemplated to be spent pursuant to the year 1999, 2000 or 2001 capital appropriations/spending budgets set forth in Section 6.1(a) of the Company Disclosure Letter; or (D) by any means, make any acquisition of, or investment in, assets or stock of, or other interest in, any other Person or entity in excess of $100,000,000 in the aggregate or $30,000,000 in respect of any transaction or series of related transactions;
(iv) except as set forth in Section 6.1(a)(iv) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries shall (A) incur, assume or prepay any long-term debt or incur or modify assume any material indebtedness or short-term debt other liability (except for additional borrowings than in the ordinary and usual course of business in amounts and for purposes consistent with past practice under existing lines of credit credit, and except for the incurrence of long-term indebtedness in existence on connection with the date hereof); refinancing of existing indebtedness either at its stated maturity or at a lower cost of funds, (iiiB) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any third-party, including by means of any "keep well" or other Person agreement to support or maintain any financial statement condition of another person, except in the ordinary and usual course of business business, (C) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates consistent with past practices and except for obligations of Subsidiaries of the Company incurred practice, or (D) change any accounting principle, practice or method in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent a manner that is inconsistent with past practices); or practice, except to the extent required by U.S. GAAP as advised by the Company's regular independent accountants;
(v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in neither the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it Company nor any of its Subsidiaries shall (i) enter into take or fail to take any new agreements action that is reasonably likely to make any representation or commitments for warranty of the Company contained herein inaccurate in any severance material respect at, or termination pay as of any time prior to, the Effective Time, or enter into any employment that is, individually or severance in the aggregate, reasonably likely to have a Material Adverse Effect;
(vi) except as required by applicable Law, an existing collective bargaining agreement withor other Contract identified in Section 6.1(a)(vi) of the Company Disclosure Letter, neither the Company nor any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans (other than issuances of additional options, performance shares or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans, provided, that any such additional options, performance shares or rights to acquire Shares shall not vest in connection with the Merger and the other transactions contemplated by this Agreement), or except as required by any existing contract with a non-officer employer increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (employees, except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(evii) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change by applicable law, an existing collective bargaining agreement or other Contract identified in law or in GAAP, change any Section 6.1(a)(vii) of the accounting principles or practices used by it;
(f) Company Disclosure Letter, neither it the Company nor any of its Subsidiaries shall revalue in grant any respect severance or termination pay to, or enter into any employment or severance agreement with any director or officer of it or such Subsidiaries, provided, that the foregoing shall not require the Company to violate any of its material assets, including writing down obligations existing prior to the value date hereof as set forth in Section 5.1(h) of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practicesCompany Disclosure Letter;
(gviii) neither it the Company nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(hix) neither it the Company nor any of its Subsidiaries shall make any material Tax election (other than in the ordinary and usual course or as is required by Law) or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
(i) neither it nor any terminated except in the ordinary and usual course of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectbusiness; and
(jx) neither it the Company nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(i) the business of Parent and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(ii) it shall not (A) amend its articles of incorporation or by-laws; (B) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend payable, in cash, stock or property in respect of any capital stock, other than dividends from its direct or indirect wholly owned Subsidiaries and other than regularly quarterly cash dividends not in excess of $0.515 per share of Parent Common Stock and regularly quarterly cash dividends on the preferred and preference stock of its Subsidiaries; (D) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of Parent Common Stock or any securities convertible into or exchangeable or exercisable for any shares of Parent Common Stock (other than repurchases, redemptions or other acquisitions which are made at the then-prevailing market price of Parent Common Stock on the NYSE and which in the aggregate do not exceed ten percent of the shares of Parent Common Stock outstanding as of the date hereof) or (E) except as permitted under this Agreement, enter into any agreement with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of all or substantially all of the equity securities of it or any of its Significant Subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X under the Exchange Act);
(iii) neither Parent nor any of its Subsidiaries shall, (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of Parent Common Stock (other than (I) shares of Parent Common Stock issuable pursuant to options outstanding on the date hereof under the Parent Stock Plan, issuances of additional options or rights to acquire shares of Parent Common Stock granted pursuant to the terms of the Parent Stock Plan as in effect on the date hereof in the ordinary and usual course of the operation of such Parent Stock Plan and issuances of shares of Parent Common Stock pursuant to options granted after the date hereof pursuant to the Parent Stock Plan and (II) issuances of Parent Common Stock, or securities convertible with or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, shares of Parent Common Stock, to a third-party on arms-length terms not in excess of 20% of the number of shares of Parent Common Stock outstanding as of the date hereof), (B) other than pursuant to the year 1999, 2000 or 2001 capital appropriations/ spending budgets set forth in Section 6.1(b) of the Parent Disclosure Letter and other than in the ordinary and usual course of business (I) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any property or assets, and other than sales not in excess of $250,000,000 in the aggregate; or (II) by any means, make any acquisition of, or investment in, assets or stock of, or other interest in, any other Person or entity in excess of $250,000,000 in the aggregate or (C) acquire "Beneficial Ownership" (as such term is defined in the Rights Agreement) of any Shares;
(iv) Parent shall not change any material accounting principle, practice or method in a manner that is inconsistent with past practice, except to the extent required by U.S. GAAP as advised by Parent's regular independent accountants;
(v) neither Parent nor any of its Subsidiaries shall take or fail to take any action that is reasonably likely to make any representation or warranty of such party contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect; and
(vi) neither Parent nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (Time, unless Parent shall otherwise approve in writing, which approval shall consent (such consent not to be unreasonably withheld or delayed), and except as otherwise expressly contemplated by this Agreement (including that the Company and its Subsidiaries will not be required to act in a manner inconsistent with any representation, warranty, agreement, covenant, condition or other provision of this Agreement):
(a) or required by applicable Laws, the business of it the Company and its Subsidiaries shall be conducted conducted, in all material respects, in the ordinary and usual course consistent with past practices andpractice, to and the extent consistent therewith, it Company and its Subsidiaries Subsidiaries, at their expense, shall use commercially their respective reasonable best efforts to preserve its their business organization intact and organizations intact, maintain its existing satisfactory relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessorslenders, employees and distributors and other Persons with whom they have material business associatesrelations and keep available the services of their key officers and employees. Without limiting the generality of the foregoing, from the date of this Agreement until the Effective Time, except (x) as otherwise contemplated or specifically permitted by this Agreement, (y) as Parent may consent (such consent not to be unreasonably withheld or delayed) or (z) as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit any of its Subsidiaries to:
(i) amend its Organizational Documents;
(ba) it shall notauthorize for issuance, (i) issueissue or sell, sell or otherwise pledge, dispose of or subject to any Lien (other than Permitted Liens) or agree or commit to any of its Subsidiaries' Capital Stock owned by it; the foregoing in respect of, any shares of beneficial interest or shares of any class of capital stock or other equity interest of the Company or any Subsidiary or any options, warrants, convertible securities or other rights of any kind to acquire any such
(ii) amend its charter(a) authorize for issuance, bylaws orissue or sell, except for pledge, dispose of or subject to any amendment which will not hinderLien or agree or commit to any of the foregoing in respect of, delay any shares of beneficial interest or make more costly shares of any class of capital stock or other equity interest of the Company or any Subsidiary or any options, warrants, convertible securities or other rights of any kind to Parent acquire any such shares or any other equity interest, of the Offer Company or any Subsidiary, other than the issuance of Shares upon exercise of Company Options, or the Mergersettlement of RSUs or Company Awards outstanding on the date of this Agreement and except as permitted under Section 6.1(a)(vii); (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (vb) repurchase, redeem or otherwise acquire any securities or permit equity equivalents except in the ordinary course of business in connection with (i) the cashless exercise of Company Options in accordance with the Stock Plans, (ii) the lapse of restrictions on Restricted Shares, or the settlement of RSUs or Company Awards, in each case, in order to satisfy withholding or exercise price obligations in accordance with the Stock Plans or Director Deferral Program, or (iii) the cancellation of the Company Options, Restricted Shares, RSUs and Company Awards pursuant to Section 4.3; (c) adjust, redeem, reclassify, combine, split, or subdivide any shares of beneficial interest or shares of any class of capital stock or other equity interest of the Company or any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital StockSubsidiaries; or (vid) adopt a plan declare, set aside, make or pay any dividend or other distribution, payable in cash, shares of complete beneficial interest, property or partial liquidation otherwise, with respect to any of the shares of beneficial interest or dissolutionshares of any class of capital stock or other equity interests of the Company or any of its Subsidiaries, merger except for (i) cash dividends by any direct or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another indirect wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject only to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class the Company or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than wholly-owned Subsidiary in the ordinary and usual course of business consistent with past practicespractice, transfer(ii) regular quarterly dividends on the Shares (but not to exceed $0.63 per Share for each regular quarterly dividend) with declaration, leaserecord and payment dates reasonably consistent with the Company’s past practice for the comparable quarter, licenseit being agreed that declarations of dividends between the date hereof and the consummation of the Merger will provide that such dividend is not payable if the Merger is consummated prior to the relevant record date, guarantee(iii) dividends or distributions required under the applicable Organizational Documents, sell or (iv) dividends or distributions consistent with past practice with respect to the Subsidiaries that are listed in Section 6.1(a)(ii) of the Company Disclosure Letter;
(iii) acquire or agree to acquire (whether by merger, consolidation, acquisition of equity stock or assets or otherwise) any Person (or division or assets thereof) or any real property from any other Person with a value or purchase price in excess of $10,000,000 individually or $25,000,000 with respect to all such acquisitions in the aggregate, other than (a) acquisitions pursuant to Contracts in effect as of the date of this Agreement as described in Section 6.1(a)(iii) of the Company Disclosure Letter and (b) acquisitions of equity interests otherwise permitted under clause (ix) of this Section 6.1;
(iv) incur any indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise dispose as an accommodation become responsible for, the obligations of or subject to any Lien Person (other than Permitted Liensa wholly-owned Subsidiary) any other property or assets or incur or modify any material for indebtedness, except for: (a) indebtedness for borrowed money incurred under the Company’s existing credit facility or other liability (except for additional borrowings existing similar lines of credit in the ordinary course under lines of credit in existence on the date hereof)business; (iiib) assumeindebtedness to finance the costs and expenses incurred in connection with the transactions contemplated hereby; (c) refinancings of indebtedness becoming due and payable in accordance with their terms on terms and in such amounts reasonably acceptable to Parent; and (d) inter-company indebtedness among the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(v) repurchase, guaranteerepay, endorse defease or otherwise pre-pay any indebtedness, except (a) repayments in the ordinary course of business, (b) payments made in respect of any termination or settlement of any interest rate swap or other similar hedging instrument relating thereto, or (c) prepayments, repayments of mortgage indebtedness secured by one or more Owned Real Properties in accordance with their terms, as such loans become liable due and payable or responsible payment of indebtedness in accordance with its terms; or (whether directlyexcept with respect to any Actions) pay, contingently discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise) for the obligations of any other Person ), except in the ordinary course of business consistent with past practices and except for obligations practice;
(vi) modify, amend, or terminate any Material Contract or enter into any new Contract that, if entered into prior to the date of Subsidiaries of the Company incurred this Agreement, would have been a Material Contract, in the ordinary course of business; (iv) make any loans to any other Person (each case other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Personpractice;
(dvii) except (a) as may be set forth in Section 6.1(a)(vii) of the Company Disclosure Letter or (b) to the extent required to comply with under any Benefit Plan as in effect on the date of this Agreement or as required by applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall (i) enter into any new agreements increase the compensation (including bonus opportunities) or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, fringe benefits of any of its directors, executive officers or employees or consultants (except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practicespractice with respect to employees who are not parties to a severance agreement, employment or change-in-control agreement), (ii) terminategrant any severance or termination pay, other than nominal severance to terminated employees, (iii) make any new equity awards to any director, officer or employee, except with respect to new hires in the ordinary course of business, which equity awards shall be treated in the same manner as the regular equity grants permitted to be made pursuant to, and described in, Section 6.1(a)(vii) of the Company Disclosure Letter, (iv) enter into or amend any employment, consulting, change-in-control or severance agreement or arrangement with any of its present or former directors, executive officers, or employees (except in the ordinary course of business consistent with past practice with respect to employees who are not directors, executive officers or parties to a severance agreement, employment or change-in-control agreement), (v) establish, adopt, enter into, freeze or amend in any material respect or terminate any Benefit Plan, take any action to accelerate entitlement to benefits under any Benefit Plan, or make any new grants or awards undercontribution to any Benefit Plan, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not than contributions required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivableLaw, other than in the ordinary course of business consistent with past practices;
practice, (gvi) neither it nor pay, accrue or certify performance level achievements at levels in excess of actually achieved performance in respect of any component of its Subsidiaries shall settle an incentive-based award, or compromise take any material claims or litigation or terminate or materially affirmative action to amend or modify waive any of its material Contracts performance or waivevesting criteria or accelerate vesting, release exercisability, distribution, settlement or assign funding under any material rights or claims;
Benefit Plan, except as contemplated by the Benefit Plans as in effect on the date hereof, (hvii) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action with respect to salary, compensation, benefits or omit other terms and conditions of employment that would result in the holder of a change-in-control or similar agreement having “good reason” to terminate employment and collect severance payments and benefits pursuant to such agreement, (viii) terminate the employment of any holder of a change-in-control or similar agreement other than for “cause” (within the meaning of such agreement); (ix) take any action that would cause result in any Benefit Plan violating Section 409A of its representations the Code; and warranties herein (x) execute or amend any collective bargaining agreement or other obligation to any labor organization;
(viii) except as required by the SEC or changes in GAAP which become untrue effective after the date of this Agreement, change in any material respect; andrespect GAAP financial accounting principles or policies;
(jix) neither it nor make any loans, advances or capital contributions to, or investments in, any Persons (other than (a) to or in wholly-owned Subsidiaries, (b) as required by any Contract in effect on the date hereof and described in Section 6.1(a)(ix) of the Company Disclosure Letter or (c) amounts up to $15,000,000 in the aggregate);
(x) make, authorize, or enter into any commitment for any capital expenditure (“Capital Expenditures”) other than (a) Capital Expenditures for items and in the amounts (other than immaterial changes) set forth in the Company’s current projections for Capital Expenditures as updated by Company’s management in the ordinary course of business (which projections, as so updated prior to the date of this Agreement, is set forth on Section 6.1(a)(x) of the Company Disclosure Letter), together with up to $5,000,000 of additional Capital Expenditures as deemed appropriate by the Company, or in the Company’s 2009 budget (so long as such budget is generally consistent with the projections for 2008, or as reasonably approved by Parent), and (b) Capital Expenditures in the ordinary course of business and consistent with past practice necessary to repair and/or prevent damage to any of the assets or properties of the Company or any of its Subsidiaries will authorize as is necessary in the event of an emergency situation;
(xi) waive, release, assign, settle or compromise any Action for amounts greater than, $1,000,000 individually or $5,000,000 in the aggregate;
(xii) amend any term of any outstanding equity security or equity interest of the Company or any of its Subsidiaries;
(xiii) adopt or enter into a plan of complete or partial liquidation or dissolution or adopt resolutions providing for or authorizing such liquidation or dissolution;
(xiv) fail to use its reasonable best efforts to maintain in full force and effect the existing insurance policies or to replace such insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses or substantially equivalent policies;
(xv) except as required by applicable Law, (a) prepare or file any material Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method of accounting that is materially inconsistent with positions taken, elections made or methods of accounting used in preparing or filing similar Tax Returns in prior periods, (b) enter into any settlement or compromise of any material Tax liability, (c) file any material amended Tax Return, (d) change any annual Tax accounting period, (e) enter into any closing agreement relating to any material amount of Taxes or consent to any material claim or audit relating to Taxes, (f) surrender any right to claim any material Tax refund or (g) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(xvi) mortgage or pledge, or suffer to exist any Liens on, any Owned Real Property or other real property or interest therein, or any material assets other than (a) sales of properties, and at or above the price, identified in Section 6.1(a)(xvi) of the Company Disclosure Letter, and (b) Permitted Liens;
(xvii) transfer, license, sell, lease or otherwise dispose of any assets (by merger, consolidation, sale of assets or otherwise) with a fair market value in excess of $15,000,000 in the aggregate with respect to all such transfers, licenses, sales, leases or other dispositions, provided that the foregoing shall not prohibit the Company and its Subsidiaries from (a) selling inventory in the ordinary course of business consistent with past practice or (b) transferring, selling, leasing or disposing of any assets pursuant to any Contract that is in effect as of the date hereof;
(xviii) effectuate a “plant closing” or “mass layoff,” as these terms are defined in WARN or similar state or local Laws;
(xix) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance, which in each case, is material to either of the Business Units;
(xx) release or permit the release of any Person from, waive or permit the waiver of any right under, fail to enforce any provision of, or grant any consent or make any election under, any confidentiality, “standstill” or similar agreement to which the Company or any of its Subsidiaries is a party or take any action to exempt any Person other than Merger Sub and its Affiliates from the restrictions on “business combinations” contained in Section 203 of the DGCL or the Company’s certificate of incorporation or bylaws, except, in each case, to the extent the Company Board shall have determined in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable Law, but in such case only after providing Parent with prior written notice of such determination;
(xxi) knowingly take any action that would, or would reasonably be expected to (a) result in the failure of a condition set forth in Section 7.2(a) or Section 7.2(b), or (b) individually or in the aggregate, prevent, delay or impede in any material respect the consummation of the Merger or the other transactions contemplated by this Agreement; or
(xxii) enter into any agreement or otherwise make a commitment, to do any of the foregoing.
(b) Parent covenants and agrees that, prior to the Effective Time, Parent shall not knowingly take or permit any of its Affiliates to take any action that, individually or in the aggregate, is reasonably likely to (i) result in the failure of a condition set forth in Section 7.3(a), Section 7.3(b) or Section 7.3(c) or (ii) prevent, delay or impede in any material respect the consummation of the Merger or the other transactions contemplated by this Agreement.
(c) The Company and Parent acknowledge that nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly o
Appears in 1 contract
Interim Operations. The Company (A) Each of the Westin Companies covenants and agrees agrees, as to itself ------------------ and its Subsidiaries thatSubsidiaries, that after the date hereof and prior to the Effective Time (unless Parent Starwood Trust shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
): (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices practice and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
; (b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by itSubsidiaries except that (a) the Westin Companies may issue shares to members of management of the Westin Companies so long as such issuance does not (without giving effect to any issuance described in clause (b) below) result in any of the Westin Subsidiaries having more than 1,000,000 shares of its common stock on a fully diluted basis outstanding on the Closing Date and (b) the Westin Companies may issue shares pursuant to options outstanding under the Executive Securities Purchase and Employment Agreements between one or more of the Westin Companies or their Subsidiaries and each of Juer▇▇▇ ▇▇▇▇▇▇▇, ▇▇ed▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇ch▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ Jack ▇▇▇ ▇▇▇▇▇▇▇▇▇▇; (ii▇i) amend its chartercertificate of incorporation, bylaws orpartnership agreement, except for any amendment which will limited liability company agreement or by-laws, as the case may be, provided that this clause shall not hinder, delay or make more costly apply to Parent the Offer or the MergerLLC; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock or issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, provided that this clause shall not apply to the LLC; (iv) declare, set aside or pay any cash dividend or other distribution payable in cash, stock or property in respect of any Capital Stockcapital stock, or otherwise make any payments to any Member or any of its stockholders (other than pursuant to an agreement existing on the date hereof and set forth on Schedule 7.2(a)), other than dividends from its direct or indirect wholly-owned Subsidiaries and other than (a) in the case of Worldwide, cash dividends not in excess of $160,000,000 and an in-kind dividend consisting of the capital stock of Pegasus Systems, Inc. owned as of the date hereof by the Westin Companies, (b) in the case of Lauderdale and Seattle, cash dividends not in excess of $6,000,000 in the aggregate, (c) in the case of Denver, cash dividends not in excess of an amount equal to accumulated and undistributed earnings and profits of Denver and (d) in the case of Atlanta, cash dividends not in excess of $34,200,000; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stockcapital stock (except in the case of Worldwide for the repurchase or redemption of shares of its stock held by Nomura), provided that this clause shall not apply to the LLC; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or 34 38 rights of any kind to acquire, acquire any shares of of, its Capital Stock capital stock or any class of any class or any Westin Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets (other than, in the case of the Westin Companies, shares issuable pursuant to under the Executive Securities Purchase and Employment Agreements between one or more of the Westin Companies or their Subsidiaries and each of Juer▇▇▇ ▇▇▇▇▇▇▇, ▇▇ed▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇ch▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ Jack ▇▇▇ ▇▇▇▇▇▇▇▇▇▇), ▇rovided that this clause shall not apply to the LLC; (ii) mortgage, pledge or encumber any other property or assets (including capital stock of any of its Subsidiaries) or guarantee, incur or modify any material indebtedness or other liability (except for additional borrowings that (a) Worldwide may incur indebtedness that is, in the ordinary course case of borrowed money, both prepayable and assumable by a third party, in either case at any time without penalty, and, in all cases, is at fair market terms and otherwise consistent with Schedule 6.1(c) (collectively, "Prepayable Debt"), in an amount not to exceed $160 million, (b) Lauderdale and Seattle may incur Prepayable Debt in an aggregate amount not to exceed $6 million, (c) Denver may incur Prepayable Debt in an aggregate amount not to exceed the amount of accumulated and undistributed earnings and profits of Denver, (d) the Westin Companies and their Subsidiaries may incur Prepayable Debt to fund capital expenditures as permitted by Section 1.3(e) and to fund acquisitions as permitted by Section 1.3(f) and indebtedness incurred by any joint venture that is not controlled by the Westin Companies, (e) Atlanta may incur Prepayable Debt in an aggregate amount not to exceed $34,200,000, (f) the Westin Companies may incur (1) Prepayable Debt in respect of capital expenditures relating to St. John ▇▇▇/or its Subsidiaries in an amount not to exceed $9,500,000, (2) Prepayable Debt represented by notes payable in connection with the financing of insurance premiums in an amount not to exceed $3,000,000 (provided that at the Closing Date the aggregate principal amount of such notes payable does not exceed $2,261,000), (3) Prepayable Debt represented by capital leases for an aggregate amount not to exceed $3,875,000, and (4) subordinated Prepayable Debt that is required to be purchased by Nomura pursuant to the Participation Agreement dated as of May 12, 1995, among Nomura, the Members, the LLC and the other parties thereto in an aggregate amount not to exceed $2,200,000 plus any subordinated Prepayable Debt required to be purchased by Nomura in connection with any capital expenditures approved under lines Section 1.3(e) or any acquisitions approved under Section 1.3(f), (g) the Westin Companies and their Subsidiaries may enter into guarantees of credit performance under management, franchise, license or similar agreements to which any of the Westin Companies or any of their Subsidiaries is a party, (h) the Westin Companies and their Subsidiaries may make loans to, or investments in, owners of hotels in existence on connection with the date hereof); (iii) assumeobtaining of management, guaranteefranchise, endorse license or otherwise become liable or responsible (whether directly, contingently or otherwise) for similar contracts with such owners provided that the obligations amount of any other Person except such loan or investment shall not exceed $1,000,000 and that the aggregate amount of all such loans or investments shall not exceed $5,000,000 and (h) the Westin Companies may incur trade debt and similar indebtedness incurred in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of businesspractice; (iviii) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate as permitted by Section 1.3(e) or, by any means, make any significant acquisition of, or investment in, assets or stock of any other Person;
Person or entity other than as permitted by Section 1.3(f); or (iv) sell, lease (as lessor), transfer or otherwise dispose of any assets, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice; (d) except as may be required to comply with applicable law or by existing contractual commitments, set forth in Section 6.1(d) of the Westin Disclosure Letter neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans, or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
); (e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation (except as set forth in Section 6.1(e) of the Westin Disclosure Letter and except for litigation involving claims that are covered by insurance) or modify, amend or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
; (hf) neither it nor any of its Subsidiaries shall make any Tax election or permit any material insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled or terminated;
terminated except in the ordinary and usual course of business; 35 39 (g) neither it nor any of its Subsidiaries will make any change in accounting practices or policies applied in the preparation of the financial statements referred to in Section 5.1(e) that would have an economic impact on any of the Westin Companies, except as required by GAAP; (h) neither it nor any of its Subsidiaries will enter into any contract for the purchase of real property or for the sale of any Owned Property or exercise any option to purchase real property listed in subsection (a) of Section 5(p) of the Westin Disclosure Letter or any option to extend a lease listed in subsection (b) of Section 5(p) of the Westin Disclosure Letter; (i) except as set forth in Section 6.1(i) of the Westin Disclosure Letter, neither it nor any of its Subsidiaries will, directly or indirectly, enter into any significant contract or agreement with any Member or any Affiliate of any Member (other than the Westin Subsidiaries and their respective subsidiaries) other than as expressly contemplated by this Agreement; (j) neither it nor any of its Subsidiaries shall knowingly take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jk) neither it nor any of its Subsidiaries shall sell, transfer, assign, lease, sublease, license or sublicense any Intellectual Property Rights, except in the ordinary course of business consistent with past practice and except in connection with the operation of the Westin Companies' timeshare business; (l) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself and ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writingTime, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable their respective best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;, and neither the Company nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect. By way of amplification of the foregoing and not limitation, neither the company nor any of its Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, take any action, including but not limited to the following, except with the prior consent of a Designated Officer (as defined below):
(ba) it shall not, not (i) issueamend its articles of incorporation or by-laws, sell except as may be required to increase the number of shares of Common Stock in connection with the conversion of the Convertible Loan, the Series A Preferred or otherwise dispose the Series B Preferred, in each case outstanding as of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itthe date hereof; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iviii) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (viv) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(cb) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt or any other property or assets, except for (other than Shares issuable pursuant to Company Options x) issuances of Common Stock upon conversion of the Convertible Loan, the Series A Preferred or the Series B Preferred, in each case outstanding on the date hereof), and (y) issuances of Series B Preferred upon exercise of warrants outstanding on the date hereof; (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations including capital stock of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practicesits Subsidiaries); or (viii) make any commitments for, make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of or other interest in, any other PersonPerson or entity;
(dc) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any -23- Company Compensation and Benefit Plan Plans (including, without limitation, any grant or issuance of new Options, any amendment or changes to the terms of any Options or any repricing of Options), or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planemployees;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(gd) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Contracts or waive, release or assign any material rights or claims;
(he) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(if) neither it nor make any of change, other than required by GAAP, to its Subsidiaries shall take any action accounting principles or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respectprocedures; and
(jg) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing. For the purposes of this Section 6.1, "Designated Officer" shall mean ------------------ any of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, each of whom is an officer of the Parent.
Appears in 1 contract
Sources: Merger Agreement
Interim Operations. The Except with Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall cause each of the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior (i) to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the conduct its business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and use its Subsidiaries shall use commercially reasonable efforts to (A) preserve its business organization intact and organizations intact, (B) maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, and (C) keep available the services of its present employees and agents; and (ii) not to (other than as set forth in the corresponding section of the Seller Disclosure Letter):
(a) amend its Organizational Documents;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize merge or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of ParentPerson;
(c) neither it nor any acquire assets outside of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practicespractice from any other Person with a value or purchase price in the aggregate in excess of $50,000,000.00 or that would have any possibility of preventing or delaying the Closing beyond the Termination Date;
(d) issue, sell, pledge, dispose of, grant, transfer, Encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guaranteeguarantee or other Encumbrance of, sell any Equity Interests of the Company or otherwise dispose any of or subject to any Lien its Subsidiaries (other than the issuance of Equity Interests (i) by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary or (ii) by the Company to Seller), securities convertible or exchangeable into, or exercisable for, any Equity Interests or any options, warrants or other rights of any kind to acquire any such Equity Interests or such convertible or exchangeable securities;
(e) create or incur any Encumbrance (other than a Permitted LiensEncumbrance) on the assets of the Company or any of its Subsidiaries that, individually or in the aggregate, is material to the Company or any of its Subsidiaries;
(f) make any loans, advances, guarantees or capital contributions to or investments in any Person, other than (x) any other property of the foregoing to or assets on behalf of the Company or incur any direct or modify any material indebtedness indirect wholly-owned Subsidiary of the Company, or other liability (except for additional borrowings y) in the ordinary course under lines of credit business consistent with past practice and which do not have any possibility of preventing or delaying the Closing beyond the Termination Date;
(g) declare, set aside, make or pay any (i) cash distributions or dividends in existence on any month that in the aggregate are in excess of the lesser of (A) $150,000,000.00 and (B) the amount of Free Cash Flow generated by the Company and its Subsidiaries for the preceding month, prorated for the month in which this Agreement is entered into, and for the month in which the Closing occurs; provided, that if distributions or dividends in respect of any month shall have been less than $150,000,000.00 as a result of the foregoing limitation or otherwise, Seller shall be entitled to make additional cash distributions at any time or from time to time up to an amount equal to the lesser of (x) Free Cash Flow for the period since the date hereof); of this Agreement and (iiiy) assumethe product of (A) $150,000,000.00 and (B) the number of whole and, guaranteewithout duplication, endorse partial months in such period, or otherwise become liable (ii) non-cash distributions or responsible (whether directlydividends, contingently payable in stock, property or otherwise, with respect to any of its Equity Interests (except for non-cash distributions paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its Equity Interests;
(h) (i) incur any Indebtedness for borrowed money, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the obligations Company or any of its Subsidiaries, except for Indebtedness incurred in the ordinary course of business consistent with past practice that is satisfied in full at or prior to the Closing, or (ii) amend, modify, supplement or waive the terms of any existing Indebtedness, debt securities or warrants or other Person rights to acquire debt securities of the Company or any of its Subsidiaries, except in the ordinary course of business consistent with past practices and practice;
(i) except as contemplated by the capital budget set forth in the business plan set forth on Schedule 4.16 of the Seller Disclosure Letter, make or authorize any payment of, or accrual or commitment for, capital expenditures in excess of $25,000,000.00 in the aggregate in any consecutive six-month period (or $50,000,000.00 in the event of an increase in data demand in the Business significantly in excess of the demand anticipated on the date hereof);
(j) amend, supplement, waive, terminate, assign, convey, encumber or otherwise transfer, in whole or in part, its rights or interests under or in any Material Contract, or enter into any Intercompany Contract or Company Contract that would be a Material Contract if in effect as of the date hereof;
(k) enter into any Intercompany Contract or amend, modify or waive any Intercompany Contract in any manner that would result in the Company or its Subsidiaries paying to the other parties thereto aggregate consideration greater than that provided for obligations in the copies of Subsidiaries Intercompany Contracts provided to Purchaser pursuant to Section 4.2(a)(v);
(l) make any changes with respect to material financial accounting policies or procedures, except as required by changes in GAAP;
(m) (i) enter into any line of business in any geographic area other than the current lines of business of the Company incurred and its Subsidiaries and products and services reasonably ancillary thereto (including ancillary Internet services), including any current line of business and products and services reasonably ancillary thereto, in any geographic area for which the Company or any of its Subsidiaries currently holds a FCC License authorizing the conduct of such business, product or service in such geographic area, (ii) except as currently conducted, engage in the ordinary course conduct of business; (iv) make any loans to business in any state that would require the receipt or transfer of a Communications License or any other Person (other than License issued by any Governmental Entity authorizing operation or provision of any communication services or foreign country that would require the receipt or transfer of, or application for, a License to Subsidiaries the extent such License would reasonably be expected to prevent, materially delay or materially impair the consummation of the Transaction, or (iii) enter into any business or operations outside of the United States;
(n) file for any Company orLicense the receipt of which would reasonably be likely to prevent, customary loans materially impair or advances materially delay consummation of the Transaction;
(o) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $15,000,000.00;
(p) except to employees the extent otherwise required by Law, make or change any Tax election, change any method of Tax accounting or settle or finally resolve any controversy with respect to Taxes for an amount that materially exceeds the amount reserved with respect thereto in connection with business-related travel the most recent Financial Statements, in each case, if such action would have an adverse affect on the Company or Purchaser that is more than immaterial;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of (i) any Communications Licenses or wireless spectrum and (ii) except in the ordinary course of business consistent with past practices); practice, any other Licenses, assets, operations, rights, product lines, businesses or (v) make any commitments forinterests therein of the Company or its Subsidiaries that are material to the Business, make or authorize any capital expenditures other than pursuant to Company Contracts in amounts less than $50,000 individually and $250,000 in effect prior to the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Persondate hereof;
(dr) except other than as may be required by applicable Law or pursuant to comply with applicable law or by the existing contractual commitmentsterms and conditions of any Benefit Plan as in effect on the date hereof, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make adopt or amend any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than the adoption of annual Benefit Plans in the ordinary course of business consistent with past practices;
practice and amendments to health and welfare plans (gother than severance plans) neither it nor that do not increase benefits or result in materially increased administrative costs, (ii) grant any salary or wage increase, other than to increase salary and wages for employees by no more than 4% in the aggregate in the ordinary course of its Subsidiaries business consistent with past practice, (iii) pay aggregate bonus or incentive compensation other than in the ordinary course consistent with past practice, (iv) (x) grant any new compensation award, other than bonus awards and cash-based long term incentive compensation awards, in each case in amounts and on terms that are in the ordinary course of business consistent with past practice; provided, however, that no new awards shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter into any agreement to do any of granted under the foregoing.Phantom Share Plan,
Appears in 1 contract
Sources: Stock Purchase Agreement
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the Shareholders agree during the period commencing on the date hereof and prior to of this Agreement through the Effective Time Closing Date or termination of the Agreement under Article VIII (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(a) the business of it , including any Exhibits and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices andSchedules hereto, or to the extent consistent therewiththat Purchaser shall otherwise consent in writing, it which consent shall not be unreasonably withheld), that as to the Company:
(1) The Company shall carry on the Business in the Ordinary Course of Business and its Subsidiaries shall use all commercially reasonable efforts to preserve intact its present business organization intact organization, keep available the services of its present officers and maintain employees and preserve its existing relations and goodwill relationships with customers, suppliers, distributors, creditors, lessors, employees suppliers and others having business associates;dealings with it.
(b2) it The Company shall not, not and shall not propose to: (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iva) declare, set aside or pay any dividend payable dividend, on, or make other distributions in cashrespect of, any of its capital stock, except for: (i) those S Corporation distributions necessary to cover applicable pass-through taxes on the Company’s net income prior to Closing; or (ii) such distributions of cash prior to the Closing, provided the Company retains sufficient Working Capital in amounts at least equal to or greater than the Minimum Working Capital Amount; (b) purchase or redeem any shares of its capital stock; (c) split, combine or reclassify any of its capital stock or property issue, authorize or propose the issuance of any other securities in respect of, in lieu of any Capital Stockor in substitution for shares of its capital stock; (vd) repurchaseredeem, redeem repurchase or otherwise acquire or permit any shares of its Subsidiaries to capital stock; or (e) otherwise change its capitalization.
(3) Except as contemplated by this Agreement, the Company shall not sell, issue, pledge, authorize or propose the sale or issuance of, pledge or purchase or otherwise acquirepropose the purchase of, any shares of its Capital Stock capital stock of any class or any securities convertible into into, or exchangeable rights, warrants or exercisable for options to acquire, any such shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;convertible securities.
(c4) neither it nor any The Company shall not amend its articles of incorporation or its Subsidiaries bylaws.
(5) The Company shall (i) authorize for issuance or issuenot sell, sell lease, pledge, encumber or otherwise dispose of or subject agree to any Lien (other than Permitted Liens) any shares sell, lease, pledge, encumber or otherwise dispose of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class assets that are material to the Company’s Business or any Voting Debt other assets except in the Ordinary Course of Business and in no event amounting in the aggregate to more than $25,000.
(other than Shares issuable pursuant to 6) The Company Options outstanding on shall not incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of the date hereof); (ii) Company or guarantee any debt securities of others other than in the ordinary and usual course Ordinary Course of business Business consistent with prior practice and in no event amounting in the aggregate to more than $25,000.
(7) The Company shall not make any capital expenditures in excess of $25,000 individually or $100,000 in the aggregate without the Purchaser’s prior written consent.
(8) The Company shall maintain the levels of materials and supplies used in the Business consistent with Company’s past practicespractice for similar periods of the calendar year.
(9) The Company shall not accelerate the collection of its accounts receivable or delay the payment of its accounts payable or other liabilities, transferin each case arising out of the operation of the Business in a manner which would be inconsistent with past practice.
(10) The Company shall not adopt or amend in any material respect any collective bargaining agreement or Employee Benefit Plan; provided, leasehowever, licensethe Company shall arrange to terminate its 401K Plan, guaranteeif any, sell as of the Closing, with the understanding that all covered employee funds will be transferred to a 401K Plan maintained by Purchaser or otherwise dispose Radiant.
(11) Except for (a) payment of bonuses described in the Shareholders’ Schedules and (b) wage increases or subject raises to non-officer or director employees in the Ordinary Course of Business, the Company shall not grant to any Lien (other than Permitted Liens) employees any other property or assets or incur or modify any material indebtedness or other liability increase in compensation (except for additional borrowings the Employment Agreements) or in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay topay, or enter into any employment agreement with any employee, or severance agreement withgrant, pay or accrue to an employee, any bonus or incentive compensation.
(12) The Company shall not acquire (by merger, consolidation or acquisition of its directorsstock or assets or otherwise) any corporation, officers partnership or employees other business organization or consultants subdivision thereof, or make any investment by either purchase of stock or securities, contributions to capital, property transfer or, except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course Ordinary Course of business and consistent with past practicesBusiness, purchase of any property or assets, of any other individual or entity.
(ii13) terminate, establish, adopt, enter into, The Company shall not make any new grants material Tax election or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims Tax liability.
(14) The Company will duly and timely file all reports or litigation Tax Returns required to be filed with federal, state, local and foreign authorities and will promptly pay all Tax, assessments and governmental charges levied or terminate assessed upon it or materially amend or modify any of its material Contracts or properties (unless contesting such in good faith and adequate provision has been made therefor).
(15) The Company shall not waive, release release, grant or assign transfer any rights of material value or modify or change in any material rights or claims;respect any Material Contract other than in the Ordinary Course of Business.
(h16) neither it nor any of its Subsidiaries The Company shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall not take any action action, or omit fail to take any action action, that would cause is not in the Ordinary Course of Business or that is reasonably likely to result in any of its the representations and warranties herein to become of the Company and the Shareholders set forth in this Agreement becoming untrue in any material respect; and.
(j17) neither it nor any of The Company shall maintain in full force and effect all insurance coverages for its Subsidiaries will authorize or enter into any agreement properties and assets substantially comparable to do any coverages existing on the date hereof.
(18) Within thirty (30) days of the foregoingclose of each month after the execution of this Agreement, the Company shall make available to the Purchaser a preliminary unaudited balance sheet and income statement for the Company disclosing the financial position and results of operations of the Company for the preceding month and year to date.
(19) The Company shall not enter into, or modify, any contract with a Related Person.
(20) The Company will pay off and close the Company’s credit facility with ▇▇▇▇▇ Fargo simultaneously in connection with Closing; provided, however, that any UCC-3 termination statements related thereto will be delivered post-Closing.
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this AgreementAgreement or the Stock Option Agreement or set forth in Section 6.1 of the Company Disclosure Schedule):
(a) the business of it its and its Subsidiaries Subsidiaries's businesses shall be conducted in the ordinary and usual course consistent with past practices and(it being understood and agreed that nothing contained herein shall permit the Company to enter into or engage in (through acquisition, product extension or otherwise) the business of selling any products or services materially different from existing products or services of the Company and its Subsidiaries or to enter into or engage in new lines of business without Parent's prior written approval);
(b) to the extent consistent therewith, with (a) above it and its Subsidiaries shall use commercially their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, reinsurers, distributors, creditors, lessors, employees and business associates;
(bc) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its chartercharter or by-laws or amend, bylaws or, except for any amendment which will not hinder, delay modify or make more costly to Parent terminate the Offer Rights Agreement or the MergerNew Rights Agreement; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock; (iv) authorize, declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly dividends paid by the Company on its Common Shares not in excess of $0.11 per share and regular quarterly dividends paid by the Company on its Preferred Shares in accordance with the Company's Articles of Incorporation; or (v) repurchase, redeem or otherwise acquire acquire, except in connection with any of the Company Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentstock;
(cd) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt other property or assets (other than Shares issuable pursuant to Company Options options outstanding on the date hereofhereof under any of the Company Stock Plans or upon conversion of the Preferred Shares or Convertible Notes); (ii) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;,
(de) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans, other than awards made in the normal course under the Management Incentive Plan in respect of 1997 performance and grants of up to 20,000 restricted Common Shares to be made in January 1998 under the year 2000 Tenure Award Program, or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it);
(f) neither it nor any of its Subsidiaries shall revalue in pay, discharge, settle or satisfy any respect any of its material assetsclaims, including writing down the value of inventory liabilities or writing-off notes obligations (absolute, accrued, asserted or accounts receivableunasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations legally due and payable and arising in the ordinary and usual course of business, claims arising under the terms of products, contracts or policies issued by the Company Insurance Subsidiaries in the ordinary and usual course of business consistent with past practicesand such other claims, liabilities or obligations as shall not exceed $5 million in the aggregate;
(g) neither it nor any of its Subsidiaries shall make or change any Tax election, settle or compromise any material claims audit, file any amended tax returns or litigation permit any insurance policy naming it as a beneficiary or terminate loss-payable payee to be canceled or materially amend or modify any terminated except in the ordinary and usual course of its material Contracts or waive, release or assign any material rights or claimsbusiness;
(h) neither it nor any of its Subsidiaries shall make enter into any Tax election agreement containing any provision or permit covenant limiting in any insurance policy naming it as a beneficiary material respect the ability of the Company or loss- payable payee any Subsidiary or affiliate to be canceled (A) sell any products or terminatedservices of or to any other person, (B) engage in any line of business or (C) compete with or to obtain products or services from any person or limiting the ability of any person to provide products or services to the Company or any of its Subsidiaries or affiliates;
(i) neither it nor any of its Subsidiaries shall enter into any new quota share or other reinsurance transaction (A) which does not contain standard cancellation and termination provisions, (B) which, except in the ordinary course of business,
(j) neither it nor any of the Company Insurance Subsidiaries will alter or amend in any material respect their existing investment guidelines or policies;
(k) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jl) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (American Bankers Insurance Group Inc)
Interim Operations. The Company With respect to operations of the Assets during the period between the execution of this Agreement and the Closing Date (the “Interim Period”), Seller covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior that it shall (i) to the Effective Time (unless Parent shall otherwise approve in writingextent within the control of Seller, which approval shall not cause the Assets to be unreasonably withheld or delayed, maintained and except as otherwise expressly contemplated by this Agreement):
(a) the business of it and its Subsidiaries shall be conducted operated in the ordinary and usual course course, consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by itpractices; (ii) amend its charter, bylaws or, except provide notice of any AFE copies received by Seller for any amendment which will not hinderoperations involving Seller commitments of less than $100,000, delay or make more costly net to Parent the Offer or the MergerSeller’s interest; (iii) splitobtain Buyer’s prior written approval prior to consenting to (A) any workover designed to change the existing completion interval with respect to any Well, combine and (B) any future expenditures and proposed contracts and agreements relating to the Assets that involve individual commitments of $100,000 or reclassify its outstanding shares of Capital Stockmore, net to Seller’s interest; (iv) declareobtain Buyer’s prior written approval prior to, set aside by action or pay inaction, going non-consent on any dividend payable in cash, stock proposal made pursuant to any joint operating or property in respect of any Capital Stocksimilar agreement affecting the Assets; and (v) repurchaseobtain Buyer’s written approval before voting under any operating, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquireunit, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any shares ofjoint venture, or securities convertible into similar agreement; provided, however, that Buyer will not unreasonably withhold or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of delay a determination on any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course such approval under lines of credit in existence on the date hereof); (iii) assume), guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments forabove. Furthermore, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in during the aggregate orInterim Period, by any meansSeller will not, make any acquisition ofwithout the prior written consent of Buyer, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (ia) enter into any new agreements agreement or commitments for any severance or termination pay toarrangement transferring, selling, or enter into any employment or severance agreement with, encumbering any of its directorsthe Assets, officers other than sales of current production or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees products in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than dispositions in the ordinary course of business consistent of any item of personal property or equipment having a value of less than $50,000 and that is promptly replaced with past practices;
similar property or equipment of equal or greater value and utility; (gb) neither it nor grant any of its Subsidiaries shall settle Preferential Right or compromise other similar right to purchase any material claims Assets; or litigation or (c) enter into, terminate or materially amend or modify any of its material Contracts or waiveMaterial Contract relating to the Assets, release or assign any material rights or claims;
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(j) neither it nor any of its Subsidiaries will authorize or enter including entering into any agreement new production sales contract extending beyond the Closing Date and not terminable on sixty (60) days’ notice or less; or (d) commit to do any of the foregoing. Notwithstanding the forgoing, in the face of serious risk to life, property, or the environment, Seller may take, or consent to, such action as a prudent operator, or non-operator, as the case may be, would take without obtaining Buyer’s prior consent. Seller shall notify Buyer of any emergency action taken, and to the extent reasonably practicable, obtain Buyer’s prior approval of such actions. However, except for emergency action that must be taken in the face of serious risk to life, property, or the environment, Seller has no obligation to undertake any actions with respect to the Assets that are not required in the course of the normal operation of the Assets. To the extent that Seller is not the operator of any portion of the Assets, the obligations of Seller in Section 12.1 concerning operations or activities that normally, or pursuant to existing contracts are carried out or performed by the operator, shall be construed to require only that Seller use all reasonable efforts (without being obligated to incur any expense or institute any cause of action) to cause the operator of such portion of the Assets to take such actions or render such performance within the constraints of the applicable operating or other agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Tetra Technologies Inc)
Interim Operations. (a) The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent Keystone shall 36 otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement, the Stock Option Agreement, the Company Disclosure Letter or as required by applicable Law):
(ai) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(bii) it shall not, not (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerby-laws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock; or (vD) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither it nor any of its Subsidiaries shall (iknowingly take any action that would prevent the merger from qualifying as a tax-free "reorganization" within the meaning of Section 368(a) authorize for issuance of the Code or issue, sell or otherwise dispose of or subject to that would cause any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant representations and warranties herein to Company Options outstanding on the date hereof); (ii) other than become untrue in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; respect;
(iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or Stock Plans or increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or employees or directors (except for increases occurring take any action which would result in an acceleration of benefits or vesting under the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required Stock Plans as a result of a change in law or in GAAP, change any the consummation of the accounting principles Merger which would not otherwise occur pursuant to the terms and conditions of such benefits or practices used by itStock Plan grants, awards or options as in effect on the date hereof;
(fv) neither it nor any of its Subsidiaries shall revalue in issue any respect preferred stock or incur any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, indebtedness for borrowed money (other than indebtedness in the ordinary course of business consistent with past practicespractice, indebtedness incurred solely for the purpose of funding the Escrow Account or the replacement or refinancing of existing short-term indebtedness); or guarantee any such indebtedness;
(g) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(hvi) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee capital expenditures in an aggregate amount in excess of the aggregate amount reflected in the Company's capital expenditure budget heretofore delivered to be canceled or terminatedKeystone;
(ivii) except as contemplated by
Section 6.1 (a)(iv), neither the Company nor any of its Subsidiaries shall issue, deliver, sell, or encumber shares of any class of its common stock or any securities convertible into, or any rights, warrants or options to acquire, any such shares except the option granted under the Stock Option Agreement, options and performance share programs outstanding on the date hereof under the Stock Plans, and shares issuable pursuant to such options and performance share programs;
(viii) neither it nor any of its Subsidiaries shall take acquire any action business, whether by merger, consolidation, purchase of property or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; andassets or otherwise;
(jix) neither it nor any of its Subsidiaries will authorize or enter into any agreement shall agree prior to the Effective Time to do any of the foregoingforegoing after the Effective Time.
(b) Keystone covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or in the Keystone Disclosure Letter or as required by applicable Law):
(i) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(ii) it shall not (A) amend its certificate of incorporation or by-laws in any manner that would prohibit or hinder, impede or delay in any material respect the Merger or the consummation of the transactions contemplated hereby;
Appears in 1 contract
Interim Operations. The Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time (unless Parent shall otherwise approve in writing, which approval in the case of clauses (c)(ii), (c)(iv), (c)(vi), (e), (f) and (k) below shall not be unreasonably withheld withheld, delayed or delayed, conditioned and except as otherwise expressly contemplated permitted or required by this AgreementAgreement or described in Section 6.1 of the Company Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary course and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associatespractice;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any capital stock owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly propose to Parent amend the Offer Company Charter or the MergerCompany Bylaws; (iii) split, combine or reclassify its outstanding shares of Capital Stockcapital stock or any class thereof; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stockcapital stock other than (A) dividends from its direct or indirect wholly-owned Subsidiaries to the Company, or (B) dividends payable on the Series C Preferred Shares pursuant to and in accordance with the existing terms thereof; or (v) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(c) neither it nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock capital stock of any class or any Voting Debt (other than Common Shares issuable pursuant to Company Options outstanding on the date hereofhereof under the Stock Plans as set forth in Section 5.1(b) of the Company Disclosure Letter); (ii) other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell sell, mortgage, pledge, dispose of, or otherwise dispose of encumber or subject suffer to exist any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability Encumbrance (except for additional borrowings Permitted Encumbrances) in respect of, any assets in excess of $250,000 in the ordinary course under lines aggregate other than (A) sales of credit inventories (and/or licenses in existence on the date hereof); (iiiconnection therewith) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices practice and except (B) dispositions of obsolete or worthless assets; (iii) incur any indebtedness for obligations borrowed money other than borrowings (including issuance of Subsidiaries letters of credit) and reborrowings under its or any of its Subsidiaries’ credit facilities, as such credit facilities are in existence as of the date hereof without regard to any subsequent amendment or modification, that would at any given time cause the net funded amount of indebtedness outstanding under such credit facilities to be in excess of $4,000,000 in the aggregate (the “Maximum Amount”); provided, however, that the Company may incur indebtedness under such credit facilities in excess of the Maximum Amount to the extent that the senior management of the Company incurred reasonably determines that it is in the best interests of the Company to borrow such additional amounts in order to fund operations of the business of the Company and its Subsidiaries in the ordinary course of businesscourse; and provided, further that prior to taking any actions permitted by the foregoing proviso the Company shall give Parent three Business Days’ prior written notice that it intends to take such actions; (iv) make or commit for any loans capital expenditures in the aggregate in excess of the Company’s budget for capital expenditures, in each case, for the applicable fiscal year; (v) loan, advance funds or make any investment in or capital contribution to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)any Subsidiary; or (vvi) make any commitments foracquire (by merger, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition ofconsolidation, or investment in, assets acquisition of stock or stock of assets) any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitmentsLaw, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, modify any Company Compensation and Benefit Plan Plans in a manner that would materially increase benefits thereunder or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors (except for salary increases as a result of employee promotions occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Planbusiness consistent with past practices;
(e) neither it nor any of its Subsidiaries shallshall (i) settle or compromise any material claims or litigation in excess of $250,000 in the aggregate other than (A) settlements and compromises in the ordinary course of business and (B) settlements and compromises of liabilities not in excess of $500,000 reflected or reserved against on the financial statements included in the Company Reports; or (ii) waive, except as may be required release or assign any material rights or claims in excess of $250,000 in the aggregate other than in the ordinary course of business; provided, however, that the Company shall not settle any Governmental claims or proceedings if such settlement would result in suspension, debarment or injunctive relief that is material to the businesses of the Company and its Subsidiaries taken as a result of a change in law whole or in GAAP, change any of the accounting principles or practices used by itthat would otherwise materially affect Parent and its Affiliates;
(f) neither it nor any of its Subsidiaries shall make any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, extend or waive any applicable statute of limitations with respect to Taxes, enter into any closing agreement in respect of any material Tax claim, audit or assessment, surrender any right to claim a material Tax refund, offset or other reduction in a material Tax liability or settle or compromise any material Tax liability;
(g) use commercially reasonable efforts to (i) preserve intact its business organization and goodwill, (ii) keep available the services of its present officers and key employees and (iii) preserve the goodwill and business relationships with customers, suppliers and others having business relationships with Company;
(h) use commercially reasonable efforts to maintain with financially responsible insurance companies insurance on its tangible assets and its business in such amounts and against such risks and losses as are consistent with past practice;
(i) not enter into any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its Subsidiaries (other than the transactions contemplated by this Agreement);
(j) not alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure or ownership of any of Company’s Subsidiaries;
(k) except as required by GAAP or as recommended in writing by the Company’s independent auditors, (i) not revalue in any material respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, receivables other than in the ordinary course of business consistent with past practicespractice, or (ii) change any method of accounting or accounting principles or practice;
(gl) neither it nor not (i) grant any material severance, retention or termination pay to, or amend in any material respect any existing severance, retention or termination arrangement with, any current or former director, officer or employee of Company or any of its Subsidiaries, (ii) except to the extent required under Contracts existing as of the date hereof, increase in any material respect or accelerate in any material respect the payment or vesting of, any benefits payable under any existing severance, retention or termination pay policies or employment agreements, (iii) enter into or amend in any material respect any employment, consulting, deferred compensation or other similar agreement with any director, officer, consultant or employee of Company or any of its Subsidiaries shall settle or compromise (iv) establish, adopt or amend (except as required by applicable law) any material claims collective bargaining agreement, bonus, profit-sharing, thrift, pension, retirement, post-retirement medical or litigation life insurance, retention, deferred compensation, compensation, stock option, restricted stock or terminate other benefit plan or materially amend arrangement covering any present or modify former director, officer or employee, or any beneficiaries thereof, of Company or any of its material Contracts or waive, release or assign any material rights or claims;Subsidiaries; or
(h) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss- payable payee to be canceled or terminated;
(i) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jm) neither it nor any of its Subsidiaries will authorize or enter into any an agreement to do any of the foregoing, or commit to any of the foregoing actions.
Appears in 1 contract
Interim Operations. The Except (A) as Parent shall otherwise permit (which permission shall not be unreasonably withheld or delayed), (B) as required in order for it to comply with any Law or any contract existing on the date hereof to which the Company or any of its Subsidiaries is bound, (C) as set forth in Section 3.1 of the Company Disclosure Letter, or (D) as otherwise contemplated by this Agreement (including the Recapitalization), the Company covenants and agrees as to itself ------------------ and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):Merger Closing:
(a) the business of it the Company and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it the Company shall and shall cause its Subsidiaries shall to use commercially all reasonable commercial efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees officers and business associatesemployees;
(b) it shall not, not (i) issue, sell or otherwise sell, pledge, dispose of or subject to Lien (other than Permitted Liens) encumber any share capital owned by it in any of its Subsidiaries' Capital Stock owned by it; (ii) amend adopt any change to the Company’s and its charter, bylaws or, except for any amendment which will not hinder, delay Subsidiaries’ articles of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iii) amend the Shareholders Agreement, (iv) split, consolidate, combine or reclassify its issued and outstanding shares of Capital Stockshare capital; (ivv) declare, set aside or pay any dividend payable in cash, stock shares or property in respect of any Capital Stockshare capital other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends; or (vvi) repurchase, redeem or otherwise acquire acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock share capital or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentshare capital;
(c) other than in connection with (i) exercises of Company Warrants or (ii) issuances of shares of Company Common Stock pursuant to options and other share-based awards outstanding on the date hereof under the Company Stock Option Plans or any other Company Benefit Plan, neither it nor any of its Subsidiaries shall (iA) authorize for issuance or issue, sell or otherwise sell, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock share capital of any class or any Voting Debt other property or assets; (B) other than Shares issuable (i) in the ordinary and usual course of business, (ii) dispositions of obsolete assets that are not material to either of the Company’s lines of business, and (iii) Permitted Asset Sales made pursuant to Company Options outstanding on agreements entered into prior to the date hereof), transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including share capital of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; or (iiC) make or authorize or commit for any capital expenditures other than in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings the Company’s budgeted capital expenditures as set forth under “Capital Expenditure Budget” in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries Section 3.1 of the Company incurred in Disclosure Letter (it being understood that the ordinary course timing of business; (iv) make any loans to any other Person (budgeted expenditures may be accelerated or decelerated by the Company), and other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually excess of those reflected in such budget to the extent required in order for the R&B Telephone Company and $250,000 in the aggregate NTELOS Telephone Inc. to continue to meet their public services obligations to provide reasonable service, or, by any means, except to the extent required by existing contractual commitments, make any significant acquisition of, or investment in, assets or stock shares of or any other interest in, any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it shall nor any of shall it cause its Subsidiaries to merge or consolidate with any other Person;
(e) neither it shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of nor shall it cause its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed Subsidiaries to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Company Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees, except amendments required by Law or otherwise necessary to preserve the intended benefits under such Company Benefit Plans and salary increases for employees or directors (except for increases occurring in the ordinary and usual course of business, which shall include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it shall nor any of shall it cause its Subsidiaries shall revalue in any respect any to alter its general practices and policies relating to the payment and collection, as the case may be, of its material assets, including writing down the value of inventory or writing-off notes or accounts payable and accounts receivable, other than in the ordinary course of business consistent with past practiceseach case, in any material respect;
(g) neither it shall nor any of shall it cause its Subsidiaries shall to settle or compromise any material claims or litigation or terminate or materially modify, amend or modify terminate any of its material Designated Contracts or waive, release or assign any material rights or claims, except for settlements entered into as set forth in Section 3.1 of the Company Disclosure Schedule, provided that any such settlement shall constitute a full and complete release of related liabilities or obligations by the Company or its applicable Subsidiary and shall not in any manner place material restrictions on the operations of the Company or such Subsidiary;
(h) neither it nor any of shall use its Subsidiaries shall make any Tax election or permit reasonable commercial efforts to prevent any insurance policy naming it as a beneficiary of the Company or loss- payable payee its Subsidiaries from being cancelled or terminated prior to be canceled or terminatedthe scheduled end of its term;
(i) neither it shall nor any of shall it cause its Subsidiaries shall take to enter into any action lease or omit amend an existing lease to take any action that would cause any increase the obligations under such existing lease (whether of real or personal property) providing for annual rentals of (1) $1,000,000 or more in the aggregate per year or (2) $500,000 per year for a period of three or more years, and, in each case, is not terminable by the Company or its representations and warranties herein to become untrue in any material respect; andSubsidiaries on 90 days’ or less notice without penalty;
(j) neither it shall nor any of shall it cause its Subsidiaries will to enter into any agreement for the purchase of materials, supplies, goods, services, equipment or other assets that requires either (1) annual payments by the Company and the Subsidiaries of $750,000 or more or (2) aggregate future payments by the Company and the Subsidiaries of $5,000,000 or more, and, in each case is not terminable by the Company or its Subsidiaries on 90 days’ or less notice without penalty;
(k) neither it shall nor shall it cause its Subsidiaries to enter into any sales, distribution or other similar agreement providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets (but not including purchases made under tariff) that requires either (1) annual payments to the Company and the Subsidiaries of $500,000 or more or (2) aggregate future payments over the next two years to the Company and the Subsidiaries of $2,500,000 or more, and, in each case is not terminable by the Company or its Subsidiaries on 90 days’ or less notice without penalty;
(l) neither it shall nor shall it cause its Subsidiaries to enter into any partnership, joint venture or other similar agreement or arrangement, except for any IRUs, co-location agreement or other ordinary course commercial business relationships in the ordinary course of business consistent with past practice;
(m) neither it shall nor shall it cause its Subsidiaries to incur, assume or guarantee any indebtedness for borrowed money (other than capital leases or in connection with the Debt Financing) other than in the ordinary course of business and in amounts and on terms consistent with past practices, but in any event not exceeding a net total of $2,000,000;
(n) neither it shall nor shall it cause its Subsidiaries to create or otherwise incur any material Lien (other than Permitted Liens) on any material asset other than in the ordinary course of business consistent with past practices or as otherwise permitted by the Debt Financing;
(o) neither it shall nor shall it cause its Subsidiaries to (1) enter into any employment, deferred compensation, severance, retirement or other similar agreement entered into with any director or officer of the Company (or any amendment to any such existing agreement), (2) offer of any new severance or termination protection to any director or officer of the Company, or (3) make or authorize a change in compensation or other benefits payable to any director or officer of the Company pursuant to any severance or retirement plans or policies thereof; provided, however, that the Company and its Subsidiaries shall be permitted to enter into such arrangements with any new non-executive officer or any non-executive officer that has been promoted or had a change in role or responsibilities;
(p) neither it shall nor shall it cause its Subsidiaries to materially change their accounting principles, practices or methods, except as required by GAAP or Law;
(q) neither it shall nor shall it cause its Subsidiaries to authorize or enter into any an agreement to do any of the foregoing; and
(r) the Company shall use its reasonable best efforts to consummate the Permitted Asset Sales pursuant to their terms.
Appears in 1 contract
Interim Operations. The Company Except as set forth in Section 3.1 of the Western Disclosure Letter, Western covenants and agrees as to itself ------------------ and its the Transferred Subsidiaries that, after the date hereof and prior to the Effective Time Closing (unless Parent Protection One shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement, the Stock Option Agreement and the Option and Voting Agreement):
(a) the business businesses of it and its the Transferred Subsidiaries shall be conducted in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Western shall cause the Transferred Subsidiaries shall to use commercially all reasonable efforts to preserve its their respective business organization organizations intact and maintain its their respective existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) it shall not, (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (ii) amend its charter, bylaws or, except for any amendment which will not hinder, delay or make more costly to Parent the Offer or the Merger; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock or any securities convertible into or exchangeable or exercisable for any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parent;
(c) neither it Western nor any of its Subsidiaries shall (i) authorize for issuance or issue, sell sell, pledge, dispose of, encumber or otherwise dispose accelerate, modify, or amend the terms of or subject to any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or capital stock in any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof)Transferred Subsidiary; (ii) amend the certificate of incorporation or by-laws of any Transferred Subsidiary; (iii) split, combine or reclassify the outstanding shares of capital stock of any Transferred Subsidiary; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock of WestSec or Westar Security; (v) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of capital stock of any Transferred Subsidiary or any securities convertible into or exchangeable or exercisable for any shares of capital stock of any Transferred Subsidiary; (vi) other than in the ordinary and usual course of business consistent with past practicesbusiness, transfer, lease, license, guarantee, sell or otherwise sell, mortgage, pledge, dispose of or subject to any Lien (other than Permitted Liens) encumber any other property or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets and capital stock of any Transferred Subsidiary) of any Transferred Subsidiary or permit any Transferred Subsidiary to incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; (iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices)liability; or (vvii) make permit any commitments for, Transferred Subsidiary to make or authorize or commit for any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, permit any Transferred Subsidiary to make any acquisition of, or investment in, assets or stock of any other PersonPerson or entity, except for (A) acquisitions of security monitoring accounts in the ordinary course of business consistent with past practice, (B) other acquisitions of security monitoring accounts not to exceed $5,000,000 in the aggregate and (C) other capital expenditures not to exceed $500,000 in the aggregate;
(dc) except as may be required to comply with applicable law or by existing contractual commitments, neither it Western nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees of any Transferred Subsidiary except grants, awards or directors (except for increases occurring in the ordinary and usual course of business, business (which shall include normal periodic performance reviews and related compensation and benefit grants, awards or increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan);
(ed) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor any of its Subsidiaries shall revalue in any respect any of its material assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices;
(g) neither it Western nor any of its Subsidiaries shall settle or compromise any material claims or litigation involving any Transferred Subsidiary or, except in the ordinary and usual course of business modify, amend or terminate or materially amend or modify any of its material Contracts to which a Transferred Subsidiary is party or waive, release or assign any material rights or claimsclaims of any Transferred Subsidiary;
(he) neither it Western nor any of its Subsidiaries shall make any Tax election with respect to Taxes payable by any Transferred Subsidiary or permit any insurance policy naming it any Transferred Subsidiary as a beneficiary or loss- loss-payable payee to be canceled cancelled or terminatedterminated except in the ordinary and usual course of business;
(if) neither it Western nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(jg) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing. Except as set forth in Section 3.1 of the Protection One Disclosure Letter, Protection One covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Closing (unless Western shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement, the Stock Option Agreement and the Option and Voting Agreement):
(h) the business of Protection One and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, Protection One and its Subsidiaries shall use all reasonable efforts to preserve their respective business organizations intact and maintain their respective existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates;
(i) neither Protection One nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of, encumber or accelerate, modify, or amend the terms of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any capital stock of Protection One or any of its Subsidiaries; (ii) amend the certificate of incorporation or by-laws of Protection One or any of its Subsidiaries; (iii) split, combine or reclassify the outstanding shares of capital stock of Protection One or any of its Subsidiaries; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from Protection One's direct or indirect wholly-owned Subsidiaries and the dividend and other distributions referred to in the recitals to this Agreement; or (v) repurchase, redeem or otherwise acquire any shares of capital stock or any securities convertible into or exchangeable or exercisable for any shares of capital stock of Protection One or any of its Subsidiaries; (vi) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets and (including capital stock of any of Protection One's Subsidiaries) or incur or modify any material indebtedness or other liability; or (vii) make or authorize or commit for any capital expenditures or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity, except for (A) acquisitions of security monitoring accounts in the ordinary course of business consistent with past practice, (B) other acquisitions of security monitoring accounts not to exceed $5,000,000 in the aggregate and (C) other capital expenditures not to exceed $500,000 in the aggregate;
(j) neither Protection One nor any of its Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Protection One Compensation and Benefit Plans or increase the salary, wage, bonus or other compensation of any employees except grants, awards or increases occurring in the ordinary and usual course of business (which shall include normal periodic performance reviews and related compensation and benefit grants, awards or increases) except for the bonuses referred to in the recitals to this Agreement;
(k) neither Protection One nor any of its Subsidiaries shall settle or compromise any material claims or litigation or, except in the ordinary and usual course of business modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(l) neither Protection One nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated except in the ordinary and usual course of business;
(m) neither Protection One nor any of its Subsidiaries shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect; and
(n) neither Protection One nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 1 contract
Interim Operations. The Company (a) PageNet covenants and agrees as to itself ------------------ and its Subsidiaries that, from and after the date hereof of this Agreement and prior to the Effective Time (unless Parent Arch shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement, disclosed in the PageNet Disclosure Letter, or required by applicable Law):
(ai) Its business and the business of it and its Subsidiaries shall be conducted only in the ordinary and usual course consistent with past practices and, to the extent consistent therewith, it and its Subsidiaries shall use commercially their reasonable best efforts to preserve its their respective business organization organizations intact and maintain its their respective existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(bii) it It shall not, : (i) issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) any of its Subsidiaries' Capital Stock owned by it; (iiA) amend its charter, bylaws or, except for any amendment which will not hinder, delay certificate of incorporation or make more costly to Parent the Offer or the Mergerbylaws; (iiiB) split, combine combine, subdivide or reclassify its outstanding shares of Capital Stockcapital stock; (ivC) declare, set aside or pay any dividend payable in cash, stock or property in with respect of to any Capital Stockcapital stock; or (vD) repurchase, redeem or otherwise acquire acquire, except in connection with existing commitments under PageNet Stock Plans but subject to PageNet's obligations 32 under subparagraph (iii) below, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its Capital Stock capital stock or any securities convertible into into, or exchangeable or exercisable for for, any shares of its Capital Stock; or (vi) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub or another wholly-owned Subsidiary of Parentcapital stock;
(ciii) neither Neither it nor any of its Subsidiaries shall (itake any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) authorize for issuance of the Code or issue, sell or otherwise dispose of or subject to that would cause any Lien (other than Permitted Liens) any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant representations and warranties in this Agreement to Company Options outstanding on the date hereof); (ii) other than become untrue in the ordinary and usual course of business consistent with past practices, transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any material indebtedness or other liability (except for additional borrowings in the ordinary course under lines of credit in existence on the date hereof); (iii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practices and except for obligations of Subsidiaries of the Company incurred in the ordinary course of business; respect;
(iv) make any loans to any other Person (other than to Subsidiaries of the Company or, customary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $50,000 individually and $250,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither Neither it nor any of its Subsidiaries shall ERISA Affiliates shall: (iA) enter into any new agreements accelerate, amend or commitments for any severance change the period of exercisability of or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for (a) specific arrangements with 13 of the Company's employees, including one of its directors, which have been previously disclosed to Parent and (b) reasonable severance payments made to employees in the ordinary course of business and consistent with past practices, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend of stock-based compensation or otherwise modify, other benefits under any Compensation and Benefit Plan Plans; (B) amend or otherwise modify any Compensation and Benefit Plan; or (C) increase or accelerate the salary, wage, bonus or other compensation of any directors, officers or key employees, except: (x) for grants or awards to directors, officers and employees of it or directors its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice; (except for increases occurring y) in the ordinary and usual course of business, its business (which shall may include normal periodic performance reviews and related compensation and benefit increases, but not any general across-the-board increases) or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing increases and the provision of individual PageNet Compensation and Benefit PlanPlans consistent with past practice for promoted or newly hired officers and employees on terms consistent with past practice);or (z) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date of this Agreement;
(ev) neither it nor any of its Subsidiaries shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither Neither it nor any of its Subsidiaries shall revalue in incur, repay or retire prior to maturity or refinance any respect indebtedness for borrowed money or guarantee any such indebtedness or issue, sell, repurchase or redeem prior to maturity any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of its material assetsothers, including writing down the value of inventory or writing-off notes or accounts receivable, other than except (A) in the ordinary and usual course of business its business, (B) for any refinancing of such indebtedness or debt securities on terms no less favorable in the aggregate to PageNet and which would not prevent, materially delay or materially impair PageNet's ability to consummate the transactions contemplated by this Agreement, and (C) for any retirement in exchange for PageNet Shares consistent with past practicespractice;
(gvi) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or terminate or materially amend or modify any of its material Contracts or waive, release or assign any material rights or claims;
(h) neither Neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as capital expenditures in an aggregate amount in excess of the aggregate amount reflected in PageNet's capital expenditure budget for the fiscal years ending December 31, 1999 and 2000, a beneficiary or loss- payable payee copy of which has been provided to be canceled or terminatedArch;
(ivii) neither Neither it nor any of its Subsidiaries shall take issue, deliver, sell, pledge or encumber shares of any action or omit to take any action that would cause any class of its representations and warranties herein capital stock or any securities convertible or 33 exchangeable into, or any rights, warrants or options to become untrue acquire, or any bonds, debentures, notes, or other debt obligations having the right to vote or that are convertible or exercisable for, any such shares, except PageNet may issue PageNet Shares in any material respect; andexchange for indebtedness or debt securities pursuant to clause (v) above;
(jviii) neither Neither it nor any of its Subsidiaries will shall authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), or any purchase, sale, lease, license or other acquisition or disposition of any business or of a material amount of assets or securities, except for transactions entered into in the ordinary and usual course of its business, except for any acquisition of assets or any investment having a cash purchase price of $25,000,000 or less in any single instance and $50,000,000 or less in the aggregate where such acquisition or investment would not prevent, materially delay or materially impair PageNet's ability to consummate the transactions contemplated by this Agreement;
(ix) PageNet shall not make any material change in its accounting policies or procedures, other than any such change that is required by GAAP;
(x) PageNet shall not release, assign, settle or compromise any material claims or litigation in excess of $300,000 or make any material tax election or settle or compromise any material federal, state, local or foreign tax liability; and
(xi) Neither it nor any of its Subsidiaries shall authorize or enter into any agreement to do any of the foregoing.
(b) Arch covenants and agrees as to itself and its Subsidiaries that, from and after the date of this Agreement and prior to the Effective Time (unless PageNet shall otherwise approve in writing and except as otherwise expressly contemplated by this Agreement, disclosed in the Arch Disclosure Letter, or required by applicable Law):
(i) Its business and the business of its Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their reasonable best efforts to preserve their respective business organizations intact and maintain their respective existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(ii) It shall not: (A) amend its certificate of incorporation or bylaws; (B) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend payable in cash, stock or property with respect to 34 any capital stock, except for a dividend that would be received by holders of PageNet Shares on an equivalent post-Merger basis per share of Arch Common Stock after the Effective Time; or (D) repurchase, redeem or otherwise acquire, except in connection with existing commitments under Arch Stock Plans but subject to Arch' obligations under subparagraph (iii) below, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into, or exchangeable or exercisable for, any shares of its capital stock;
(iii) Neither it nor any of its Subsidiaries shall take any action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or that would cause any of its representations and warranties in this Agreement to become untrue in any material respect;
(iv) Neither it nor any of its ERISA Affiliates shall: (A) accelerate, amend or change the period of exercisability of or terminate, establish, adopt, enter into, make any new grants or awards of stock-based compensation or other benefits under any Compensation and Benefit Plans; (B) amend or otherwise modify any Compensation and Benefit Plan; or (C) increase the salary, wage, bonus or other compensation of any directors, officers or key employees, except: (x) for grants or awards to directors, officers and employees of it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice; (y) in the ordinary and usual course of its business (which may include normal periodic performance reviews and related compensation and benefit increases and the provision of individual Arch Compensation and Benefit Plans consistent with past practice for promoted or newly hired officers and employees on terms consistent with past practice); or (z) for actions necessary to satisfy existing contractual obligations under its Compensation and Benefit Plans existing as of the date of this Agreement;
(v) Neither it nor any of its Subsidiaries shall incur, repay or retire prior to maturity or refinance any indebtedness for borrowed money or guarantee any such indebtedness or issue, sell, repurchase or redeem prior to maturity any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, except in (A) the ordinary and usual course of its business, (B) for any refinancing of such indebtedness or debt securities on terms no less favorable in the aggregate to Arch and which would not prevent, materially delay or materially impair Arch' or Merger Sub's ability to consummate the transactions contemplated by this Agreement, and (C) for any retirement in exchange for shares of Arch Common Stock consistent with past practice;
(vi) Neither it nor any of its Subsidiaries shall make any capital expenditures in an aggregate amount in excess of the aggregate amount reflected in Arch' 35 capital expenditure budget for the fiscal years ending December 31, 1999 and 2000, a copy of which has been provided to PageNet;
(vii) Neither it nor any of its Subsidiaries shall issue, deliver, sell, pledge or encumber shares of any class of its capital stock or any securities convertible or exchangeable into, or any rights, warrants or options to acquire, or any bonds, debentures, notes, or other debt obligations having the right to vote or that are convertible or exercisable for, any such shares, except Arch may issue shares of Arch Common Stock issued in exchange for indebtedness or debt securities pursuant to clause (v) above;
(viii) Neither it nor any of its Subsidiaries shall authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), or any purchase, sale, lease, license or other acquisition or disposition of any business or of a material amount of assets or securities, except for transactions entered into in the ordinary and usual course of its business, except for any acquisition of assets or any investment having a cash purchase price of $25,000,000 or less in any single instance and $50,000,000 or less in the aggregate where such acquisition or investment would not prevent, materially delay or materially impair Arch' or Merger Sub's ability to consummate the transactions contemplated by this Agreement;
(ix) Arch shall not make any material change in its accounting policies or procedures, other than any such change that is required by GAAP;
(x) Arch shall not release, assign, settle or compromise any material claims or litigation in excess of $300,000 or make any material tax election or settle or compromise any material federal, state, local or foreign tax liability; and
(xi) Neither it nor any of its Subsidiaries shall authorize or enter into any agreement to do any of the foregoing.
(c) Arch and PageNet agree that any written approval obtained under this Section 6.1 must be signed, if on behalf of Arch, by the Chief Executive Officer or the Chief Financial Officer of Arch, or if on behalf of PageNet, by the Chairman of the Board and Chief Executive Officer or President and Chief Operating Officer of PageNet.
(d) Notwithstanding any other provision hereof to the contrary, PageNet may, after the date hereof (i) issue, deliver, sell, pledge or encumber in arms-length transactions with unaffiliated third parties shares of any class of capital stock of the Distributed Subsidiary or any securities convertible or exchangeable into, or any rights, warrants or options to acquire, or any bonds, debentures, notes, or other debt obligations having the
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Sources: Merger Agreement (Arch Communications Group Inc /De/)