Interim Operations. From the date of this ------------------ Agreement until the Closing Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to: (a) conduct its business and operations only in the ordinary course of business consistent with past practice; (b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them; (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, partnership agreement or other charter or organization documents; (e) except as required under Section 2.1, 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 Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect); (f) not (i) split, combine or 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) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000; (k) 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 or any of its subsidiaries; (l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries; (m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP; (n) not make any material tax election or settle or compromise any material United States or foreign tax liability; (o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder; (p) 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; (q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and (r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Marriott International Inc /Md/), Merger Agreement (Mi Subsidiary I Inc), Merger Agreement (Execustay Corp)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 8 hereof):
(a) conduct its the business and operations of the Company and its Subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its Subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or Subsidiaries, any other equity securities or voting security or equity or voting interest in the Company or any of its subsidiaries, any securities convertible into or exercisable into, or exchangeable for any rights, warrants or options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for issuances of Common Shares upon the exercise of Options outstanding as of the date hereof or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its Subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity or debt securities or equity interests of the Company or any of its subsidiaries;
Subsidiaries (g) not amend including, without limitation, securities exchangeable for, or otherwise modify the terms options, warrants, calls, commitments or rights of any Company Stock Options kind to acquire, capital stock or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees equity interests of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 businessSubsidiaries);
(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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 3 contracts
Sources: Acquisition Agreement (Goodys Family Clothing Inc /Tn), Acquisition Agreement (GMM Capital LLC), Acquisition Agreement (GMM Capital LLC)
Interim Operations. From The Company covenants and agrees as to itself and each of its Subsidiaries that, through the date of this ------------------ Agreement until the Second Closing TimeDate (unless Buyer shall otherwise approve, and except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:):
(a) conduct The business of it and its business and operations only Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all 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) Neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it or any of its Subsidiaries in any of its Subsidiaries or other Affiliates, except pursuant to the exercise of existing Company Options or warrants disclosed to Buyer pursuant to Section 3.2 hereof in accordance with their terms; (ii) amend its articles of incorporation or by-laws (or comparable organizational documents); (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 other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem or otherwise acquire, except in connection with the payment of the exercise price of any option outstanding on the date hereof under the Stock Plan, 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;
(c) Neither it nor any of its Subsidiaries shall (i) 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 other property or assets (other than shares issuable pursuant to options outstanding on the date hereof under the Stock Plan or warrants outstanding on the date hereof as described in Section 3.2 of the Seller Disclosure Letter); (ii) purchase, transfer, lease, sell, mortgage, pledge, dispose of or encumber any real property, or effect any improvements or expansions thereon; (iii) other than in the ordinary and usual course of business, purchase, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; (iv) make or authorize or commit for any capital expenditure(s) in excess of $25,000; (v) make draws against the Company's credit facility with Sunrock other than in the ordinary course of business, provided however that after such time that the Company's draws against such credit facility equal or exceed five million dollars ($5,000,000) in the aggregate, any additional draws against such credit facility, whether in the ordinary course of business or otherwise, may not be made without the prior approval of Buyer, which approval shall not be unreasonably delayed or denied; or (vi) by any means, make any acquisition of, or investment in any business, whether through the acquisition of assets or stock of any other Person;
(d) Except as may be required by applicable law, and except as provided in Section 5.8, neither it nor any of its Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase the salary, wage, bonus, severance, incentive or other compensation of any employees, officers or directors;
(e) Neither it nor any of its Subsidiaries shall settle or compromise any claims or litigation or, except in the ordinary and usual course of business consistent with past practice, enter into any Debt Contracts or Other Contracts, or modify, amend or terminate prior to the scheduled expiration thereof any of its Debt Contracts or Other Contracts or waive, release or assign any material rights or claims;
(f) 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 amended or canceled;
(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 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, trademarks or licenses which are owned or controlled directly or indirectly by the Company or any of its Subsidiaries except in the ordinary and usual course of business consistent with past practice;
(bi) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises Neither it nor any of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
(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 Subsidiaries shall license or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge or otherwise encumber any shares of any class patents or series of capital stock of trademarks which are owned or controlled directly or indirectly by the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest Subsidiaries, except in the Company or ordinary and usual course of business;
(j) Neither it nor any of its subsidiaries, Subsidiaries shall make any securities convertible into modification to employee or exercisable customer incentives or exchangeable for any such shares, securities trade policies which would reasonably be expected to cause the Company's distributors or interests, end-user customers to increase purchases above those levels normally required to meet their respective needs or any options, warrants, calls, commitments, subscriptions cause a material increase or rights to purchase decrease in the Company's inventories or acquire any such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);Working Capital; and
(fk) not (i) split, combine or reclassify Neither it nor any shares of its stock or issue or Subsidiaries shall authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its stock, (ii) in solely the case of the Company, declare, set aside or pay any dividends on, or make other distributions in respect of, announce an intention to do any of the Company's stock, or (iii) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay toforegoing, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 plancontract, agreement, trust, fund, policy commitment or arrangement for the benefit of any director, officer or employee of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 3 contracts
Sources: Stock Purchase and Sale Agreement (Dsi Toys Inc), Stock Purchase and Sale Agreement (Mvii LLC), Stock Purchase and Sale Agreement (Mvii LLC)
Interim Operations. From The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the earlier of the termination of this ------------------ Agreement until in accordance with its terms and the Closing TimeEffective Time (unless Parent shall otherwise approve in writing, and except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:):
(a) conduct the business of it and its business and operations only Subsidiaries shall be conducted in the ordinary and usual course of and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best efforts to preserve its business consistent organization intact and maintain its existing relations and goodwill with past practicecustomers, suppliers, distributors, creditors, lessors, employees and business associates;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
it shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grantpledge, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge dispose of or encumber any shares of any class or series of capital stock of the Company or owned by it in any of its subsidiaries Subsidiaries; (ii) amend its certificate of incorporation or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any 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 such shares, securities or interests by-laws; (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (iiii) split, combine or reclassify any its outstanding 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 capital stock, ; (iiiv) in solely the case of the Company, declare, set aside or pay any dividends ondividend payable in cash, stock or make other distributions property in respect of, of any capital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) except for the repurchase of the Company's stock, or (iii) except as required under Section 2.1Class A Warrant contemplated by the Warrantholder Agreement and the repurchase of outstanding Class B Preferred Shares, repurchase, redeem or otherwise acquire, or agree or commit permit any of its Subsidiaries to repurchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity any securities convertible into or debt securities exchangeable or equity interests exercisable for any shares of its capital stock;
(c) except as set forth in Section 6.1(c) of the Company or Disclosure Letter, neither it nor any of its subsidiariesSubsidiaries shall (i) 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 other property or assets (other than Shares issuable pursuant to options outstanding on the date hereof under the Stock Plan or upon conversion of the Class A Preferred Shares and Class C Preferred Shares); (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any material property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; or (iii) except as set forth in Section 6.1(c)(iii) of the Company Disclosure Letter, make or authorize or commit for any capital expenditures other than in amounts less than $25,000 individually and $100,000 in the aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity in excess of $25,000;
(gd) not amend or otherwise modify the terms of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or neither it nor any of its subsidiariesSubsidiaries shall terminate, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into into, make any new grants or awards under, amend in or otherwise modify, any material respect Compensation and Benefit Plans or take action to accelerate any material rights or benefits under any collective bargainingincrease the salary, bonuswage, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance bonus or other plan, agreement, trust, fund, policy or arrangement for the benefit compensation of any director, officer or employee of 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 employees except increases for non-executive employees occurring in the ordinary and usual course of business consistent with past practice or any interest in any real properties (whether or not in the ordinary course of businesswhich shall include normal periodic performance reviews and related compensation and benefit increases);
(je) 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 neither it nor any of its subsidiaries or any options, warrants or rights to purchase or acquire any of the same, except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or Subsidiaries shall settle or compromise any material United States claims or foreign tax liability;
(o) litigation or, except in the ordinary and usual course of business consistent with past practicebusiness, not amendmodify, modify amend or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule its material Contracts or waive, release or assign any material rights or claims thereunderclaims;
(pf) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or neither it nor any of its subsidiaries;
(q) not take Subsidiaries shall make any action that would, Tax election or would permit any insurance policy naming it as a beneficiary or loss-payable payee to be reasonably likely to, result cancelled or terminated except in any the ordinary and usual course of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfiedbusiness; and
(rg) except as to subsections (a), (b) and (c) neither it nor any of Section 5.1, not agree its Subsidiaries will authorize or commit in writing or otherwise enter into an agreement to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (CSC Holdings Inc), Merger Agreement (Clearview Cinema Group Inc), Merger Agreement (Clearview Cinema Group Inc)
Interim Operations. From the date of this ------------------ Agreement until the Closing Tender Offer Purchase Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:
(a) conduct its business and operations only in the ordinary course of business consistent with past practice;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons Persons having business dealings with them;
(c) use reasonable efforts to keep in full force and effect adequate insurance coverage and maintain and keep its properties and assets material Company Assets in good repair, working order and condition, normal wear and tear excepted;
(d) not amend or modify its respective charter or certificate Articles of incorporationIncorporation, by-laws, partnership agreement Bylaws or other charter or organization organizational documents, except that the Company shall file Articles Supplementary with respect to the Series B Preferred Stock with the SDAT;
(e) except as required under Section 2.1, 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 Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares upon or, in the case of clause (iv), shares of Series B Preferred Stock (i) exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan Option Plans as currently in effect; (ii) conversion of the Convertible Preferred Stock, (iii) exercise of the Warrants and (iv) exercise by Acquisition of the Option);
(f) not (i) split, combine or 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, stock or (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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, except that the Company may pay an aggregate dividend of $43,533.00 on the Convertible Preferred Stock on November 12, 2000 and as contemplated by Section 2.10 with respect to settlement of Company Stock Options;
(g) except as contemplated by Section 2.10, not amend or otherwise modify the terms of any Company Stock Options or the Company Option PlanPlans, the effect of which shall be to make such terms more favorable to the holders thereof or persons Persons eligible for participation therein;
(h) other than regularly scheduled seniority increases in the ordinary course of business consistent with past practice, not (i) increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiariessubsidiaries except arrangements in connection with employee transfers and agreements with new employees having a salary of greater than $85,000, or (ii) grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer or employee (other than in the ordinary course of business of the Company or any of its subsidiariessubsidiaries except that the Company may enter into new employment agreements with each of Messrs. ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ ("Management Employment Agreements") in the form attached hereto as Exhibits D and E, respectively, with such changes thereto as may be approved by Parent), or (iii) establish, adopt, enter into or amend in any material respect or take action to accelerate accelerate, any material rights or material benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, stock optionoption (except as contemplated by Section 2.10), restricted stockstock (except to the extent described in existing employment agreements), pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, director or officer or employee (other than in the ordinary course of business) of the Company of or 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 Person outside the ordinary course of business consistent with past practice or any interest in any real properties (whether or not other than 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 1,000,000 in the aggregate; and (ii) advances, loans or other incurring indebtedness for borrowed money in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,0001,000,000 or (iii) advances in the ordinary course pursuant to (A) working capital lines of credit in an amount not to exceed $1,000,000 in the aggregate and (B) warehouse lines of credit set forth in Section 3.15(a)(v) of the Company Disclosure Schedule, or any renewal or replacement thereof;
(k) 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 or any of its subsidiaries, other than in the ordinary course of business;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate other than the ordinary course of business for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by a change in law or in GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any material Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) other than in the ordinary course of business, not enter into contracts that reasonably would involve financial obligations by the Company exceeding $100,000;
(q) 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;
(qr) not take fail to report any action facts, circumstance or events that would, or would be reasonably likely to, result has resulted in any of insurance claims that, individually or in the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action aggregate, would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfieda Material Adverse Effect; and
(rs) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Chesapeake Biological Laboratories Inc)
Interim Operations. From the date of this ------------------ Agreement until ------------------ the Closing TimeDate, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent Purchaser has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:
(a) conduct its business and operations only in the ordinary course of business consistent with past practice;
(b) use all reasonable efforts to preserve intact the business, organizationbusiness organizations, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
(c) use its commercially reasonable efforts to keep in full force and effect adequate insurance coverage overages 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 articles or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, 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 Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares Company Common Stock upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (iA) split, combine or reclassify any shares of its capital 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 capital stock, (iiB) in solely 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 capital stock, or (iiiC) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to repurchase, redeem or otherwise acquire, any shares of capital 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 Plan, Stock Plan the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (iA) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; 10,000,000 and (iiB) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,0005,000,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 5,000,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax Tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States States, Dutch or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 3.17 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 VI not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do (or, in the case of clauses (i) through (iii), to do anything inconsistent with) any of the foregoing.
Appears in 3 contracts
Sources: Acquisition Agreement (Renaissance Hotel Group N V), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc)
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing TimeAgreement, except as required by applicable Law, as set forth in Section 5.1 of the Company Disclosure Schedule Schedule, or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Purchaser (which agreement shall not be unreasonably withheld, delayed or conditioned), the Company shallCompany, the Stockholder, and shall cause each of its subsidiaries tothe Asset Sellers covenant and agree that, prior to the Closing:
(a) conduct its business and operations only The Business shall be conducted in the ordinary course of business consistent with past practice;
(b) The Company and the Asset Sellers shall use commercially reasonable efforts to preserve keep intact the business, organization, goodwill, rights, licensesproperties and assets, permits and franchises vendor, supplier, customer, franchisee and other business relationships of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with themBusiness;
(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;
The Company shall not (di) not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of capital stock or other equity interests of the Company (including securities convertible into, or rights or options to acquire, capital stock or other equity interests of the Company), (ii) repurchase, redeem or otherwise acquire any class or series shares of capital stock or other equity interests of the Company (including securities convertible into, or rights or options to acquire, capital stock or other equity interests of the Company), or (iii) amend or otherwise change its certificate of incorporation or bylaws;
(d) The Company shall not acquire, including by merging or consolidating with, or purchasing the assets or capital stock or other equity interests of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or make any capital expenditures or commitments in an amount in excess of its subsidiaries or any other equity or voting security or equity or voting interest $25,000 in the Company or any of its subsidiariesaggregate, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of pursuant to existing agreements;
(e) The Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect)shall not hire any employees;
(f) The Company shall not sell, lease, license, subject to any Lien (other than a Permitted Lien) or otherwise encumber or dispose of (including through any sale-leaseback or similar transaction) any of its properties or assets, and no Asset Seller shall take any such action with respect to any of the Purchased Assets, other than (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu ofpursuant to existing agreements, or in substitution for, shares of its stock, (ii) in solely the case ordinary course 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 subsidiariesbusiness consistent with past practice;
(g) The Company shall not amend (i) make or otherwise modify the terms of forgive any Company Stock Options loans, advances or the Company Option Plancapital contributions to, the effect of which shall be to make such terms more favorable to the holders thereof or persons eligible for participation therein;
(h) investments in, any Person, other than regularly scheduled seniority increases trade accounts receivable incurred in the ordinary course of business consistent with past practice, not increase (ii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the compensation payable Indebtedness or to become payable to other obligations of any directors, officers or employees of the Company or any of its subsidiariesother Person, or grant any severance or termination pay to, or (iii) enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 “keep well” or other plan, agreement, trust, fund, policy or arrangement for the benefit agreement to maintain any financial statement condition of any director, officer or employee of the Company of any of its subsidiariesanother Person;
(ih) 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 The Company or any of its subsidiaries or any options, warrants or rights to purchase or acquire any of the same, except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) shall not adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization;
(i) None of the Company or any Asset Seller shall enter into, or materially amend, modify or supplement, any Material Contract other than in the ordinary course of its subsidiariesbusiness consistent with past practice;
(qj) not take None of the Company or any action that wouldAsset Seller (to the extent constituting Purchased Assets) shall waive, release, grant, assign or would be reasonably likely to, result in transfer any of its material rights or claims;
(k) Each of the representations Company and warranties set forth the Asset Sellers shall (i) comply in this Agreement all material respects with its obligations under the Material Contracts as such obligations become due, (ii) use commercially reasonable efforts to maintain insurance covering risks of the Business of such types and in such amounts as are consistent with its past practices, and (iii) use commercially reasonable efforts not being true to permit any insurance policy naming the Company as beneficiary or loss payable payee to be canceled or terminated;
(l) None of the Company or any Asset Seller (to the extent relevant to the Purchased Assets or Assumed Liabilities) shall (i) change any accounting policies, practices or procedures (including Tax accounting policies, practices and correct procedures), except as required by applicable Law or GAAP, (ii) revalue its assets in any material respect (including writing down or writing off any notes or accounts receivable in any material manner), except as if required by GAAP, (iii) make or change any Tax election or make or change any method of accounting with respect to Taxes, in each case that would adversely affect the Company following the Closing, except as required by applicable Law, (iv) settle or compromise any material Tax liability that would adversely affect the Company following the Closing, (v) file any amended Tax Return, (vi) enter into any Tax allocation, sharing, indemnity or closing agreement, (vii) agree to an extension or waiver of a statute of limitations applicable to any Tax liability, (viii) fail to pay any material Tax as such representation or warranty were made Tax becomes due and in effect on the date such action would have been takenpayable (including any estimated Tax), notwithstanding any other provisions hereof) or (except as to ix) prepare and file any action permitted under Section 5.4) any of the conditions set forth Tax Return in Article 7 or 8 not being satisfieda manner inconsistent with past practice; and
(rm) except as to subsections (a)None of the Company, (b) and (c) of Section 5.1, not the Stockholder or any Asset Seller shall agree or commit in writing or otherwise to do take any of the foregoingforegoing actions prohibited by this Section 5.1. Notwithstanding anything to the contrary set forth in this Agreement, the parties hereto acknowledge and agree that neither Purchaser nor its Affiliates have the right to control or direct the Company’s or any Asset Seller’s operations prior to the Closing. Prior to the Closing, each of the Company and each Asset Seller shall exercise, consistent with the terms of this Agreement, complete control and supervision over its operations.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Red Lion Hotels CORP)
Interim Operations. From and after the date hereof and prior to the earlier of the termination of this ------------------ Agreement until or the Closing Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:
(a) conduct its business and operations only in the ordinary course of business consistent with past practice;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises businesses of the Company and its subsidiaries Subsidiaries shall be operated and maintain their existing relationships with customersconducted in the ordinary course, suppliers and other persons having business dealings with them;
(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, partnership agreement or other charter or organization documents;
(e) except as otherwise contemplated by this Agreement, as set forth in Schedule 7.1 of the Company Disclosure Letter, as required under Section 2.1by applicable Laws or as AEP shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed). AEP shall not authorize for issuancetake or permit any of its Subsidiaries (including the Company or its Subsidiaries) to take any action or omit to take any action that is reasonably likely to (i) result in any of the conditions of the Merger set forth in Article VIII not being satisfied or (ii) prevent the consummation of 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 the Effective Time, the Company shall not, and shall not permit any of its Subsidiaries to, issue, sell, grant, deliver, pledge or encumber or agree or commit to issue, sellpledge, grant, delivertransfer, pledge encumber or encumber otherwise dispose of 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 Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or 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) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Subsidiaries, or otherwise modify the terms securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any Company Stock Options kind to acquire, any shares of capital stock or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees equity interests of the Company or any of its subsidiariesSubsidiaries or declare, set aside or grant pay any severance dividend or termination pay toother distribution payable in cash, stock or enter into property (or any employment combination thereof) with respect to its capital stock or severance agreement with other equity interests (except dividends or other distributions in cash, stock or property paid by any director direct or officer indirect wholly owned Subsidiary of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 to any of its subsidiaries other direct or any options, warrants or rights to purchase or acquire any indirect wholly owned Subsidiary of the same, except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (aCompany), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Federal-Mogul Holdings Corp), Merger Agreement (Icahn Enterprises L.P.)
Interim Operations. From The Company covenants and agrees as to itself and its Subsidiaries that, after the date of hereof and prior to the Effective Time (unless Parent shall otherwise consent in writing, which consent shall not unreasonably be withheld, and except as otherwise expressly contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:):
(a) conduct the business of it and its business and operations only Subsidiaries shall be conducted in the ordinary and usual course of and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business consistent organization intact and maintain its existing relations and goodwill with past practicecustomers, suppliers, distributors, strategic partners, creditors, lessors, employees and business associates;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
it shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grantpledge, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge dispose of or encumber any shares of any class or series of capital stock of the Company or owned by it in any of its subsidiaries Subsidiaries; (ii) amend its certificate of incorporation or any by-laws; (iii) other equity or voting security or equity or voting interest than in the Company or any case of its wholly-owned subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any its outstanding 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 capital stock, ; (iiiv) in solely the case of the Company, declare, set aside or pay any dividends ondividend payable in cash, stock or make other distributions property in respect of, of any of the Company's capital stock, other than dividends from its direct or indirect wholly-owned Subsidiaries; or (iiiv) except as required under Section 2.1, repurchasepurchase, redeem or otherwise acquire, except for the acquisition of shares of Company Common Stock from holders of Company Stock Options in full or agree partial payment of the exercise price payable by such holder upon exercise of Company Stock Options to the extent required or commit permitted under the terms of such Company Stock Options, or permit any of its Subsidiaries to repurchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity any securities convertible into or debt securities exchangeable or equity interests exercisable for any shares of the Company or its capital stock;
(c) neither it nor any of its subsidiaries;
Subsidiaries shall (gi) not amend issue, sell, pledge, dispose of or otherwise modify the terms encumber (A) any shares of its capital stock of any class, Rights or any Voting Debt, or (B) 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, Rights, any Voting Debt or any other property or assets (other than shares of Company Common Stock and associated Rights issuable pursuant to options and other stock-based awards outstanding on the date hereof under the Company Stock Options Plans); or the Company Option Plan(ii) transfer, the effect of which shall be lease, license, guarantee, sell, mortgage, pledge, dispose of, abandon, cancel, surrender or allow to make such terms more favorable to the holders thereof lapse or persons eligible for participation therein;
(h) other than regularly scheduled seniority increases in the ordinary course of business consistent with past practice, not increase the compensation payable expire or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or amend in encumber any material respect property or take action to accelerate any material rights or benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, assets (including capital 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 of the Company of any of its subsidiariesSubsidiaries) or business;
(d) neither it nor any of its Subsidiaries shall restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or otherwise enter into any agreement or arrangement imposing material changes or restrictions on the operation of its assets or businesses or adopt resolutions providing for or authorizing any of the foregoing;
(e) neither it nor any of its Subsidiaries shall acquire (i) not acquire by merging or agree to acquire (including, without limitation, by merger, consolidationconsolidating with, or acquisition by purchasing all or a substantial portion of stock, equity securities the assets of or interestsany stock of, or assets) by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof thereof, or otherwise acquire or agree to acquire (ii) any assets that are material, individually or in the aggregate, to the Company and any of any other person outside its Subsidiaries, taken as a whole, except purchases of inventory and raw materials in the ordinary course of business consistent with past practice (or any interest in any real properties (as permitted by Section 7.1(g), whether or not material);
(f) neither it nor any of its Subsidiaries shall (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than pursuant to the Credit Agreement in the ordinary course of business);
, (jii) not incurissue, assume sell or guarantee amend any indebtedness for borrowed money (including draw-downs on letters debt securities or lines of credit) or issue or sell any notes, bonds, debentures, debt instruments, evidences of indebtedness warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any options, warrants financial statement condition of another Person or rights to purchase or acquire enter into any arrangement having the economic effect of any of the sameforegoing, except for (iiii) renewals make any loans, advances (other than routine advances to employees of existing bonds the Company and letters of credit its Subsidiaries in the ordinary course of business not to exceed $100,000 in the aggregate; and (iibusiness) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, encumber or otherwise dispose ofcapital contributions to, or agree to sell, lease, license, encumber or otherwise dispose ofinvestment in, any material properties or assets of other Person, other than the Company or any of its subsidiariesdirect 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;
(lg) not authorize or neither it nor any of its Subsidiaries shall make any capital expenditures (including by lease) or other expenditures with respect to property, plant or equipment in excess of $100,000 10 million per quarter in the aggregate for the Company and all of its subsidiariesSubsidiaries, taken as a whole (it being understood that if capital expenditures in any quarter are less than $10 million, the shortfall shall be available to the Company to spend in future quarters);
(mh) not neither it nor any of its Subsidiaries shall make any material change changes in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except insofar as may be have been required by GAAPa 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;
(ni) not make neither it nor any material tax election or settle or compromise any material United States or foreign tax liability;
(o) of its Subsidiaries shall, except in the ordinary course of business consistent with past practice, not enter into, renew, modify, amend, modify or terminate any Contract required to be listed in Section 3.15 of terminate, waive, delay the Company Disclosure Schedule or waiveexercise of, release or assign any material rights or claims thereunderunder, any Company Material Contract or Company Lease in a manner materially adverse to Parent; 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)(viii) or Section 5.5(a)(ix) 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)(viii) or Section 5.5(a)(ix), 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;
(pj) 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) except as otherwise requested by Parent pursuant to Section 7.11(c), take any action with respect to, adopt, enter into, terminate or amend any change in control, retirement, retention, welfare, incentive or similar agreement, arrangement or benefit plan (excluding any employment or severance arrangements) for the benefit or welfare of any current or former director, officer, employee or consultant or any collective bargaining agreement, (ii) take any action with respect to, adopt, enter into, terminate or amend any employment or severance agreement or arrangement for the benefit or welfare of any current or former director, officer, employee or consultant, except actions in the ordinary course of business with respect to individual employment or severance agreements for employees below the level of Vice President, (iii) increase in any respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, employee or consultant, except increases in the ordinary course of business given to employees below the level of Vice President on an individual basis, (iv) except as otherwise provided herein and other than as set forth on Section 7.1(j) of the Company Disclosure Schedule, amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (v) pay any benefit not adopt a plan provided for as of complete or partial liquidationthe date of this Agreement under any Company Benefit Plan, dissolution(vi) other than with respect to existing commitments as of the date of this Agreement set forth on Section 7.1(j) of the Company Disclosure Schedule, mergergrant any awards under any bonus, consolidationincentive, restructuring, recapitalization performance or other reorganization 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, except as otherwise provided herein, the removal of existing restrictions in any benefit plans or agreements or awards made thereunder, or (vii) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; provided, however, this Section 7.1(j) shall not prevent the Company or any of its Subsidiaries from (x) prior to the Closing Date, paying awards under the 2006 Executive Incentive Plan and commissions to employees at the level of Vice President and above in the ordinary course of business and consistent with past practices as to the approval of such awards and the timing of such payments, to the extent the performance standards and targets set for 2006 have been satisfied, and (y) prior to the Closing Date, establishing (with the input of Parent, to the extent permitted by applicable Law), adopting and maintaining plans providing for bonuses or incentive compensation in 2007 for employees (including those at the level of Vice President or above);
(k) except for matters identified in Section 7.1(k) of the Company Disclosure Schedule, which shall set forth in reasonable detail the Company’s plans with respect thereto, neither the Company nor any of its Subsidiaries shall initiate, settle or compromise any litigation, claim, grievance, charge or proceeding involving any Intellectual Property 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 and other than in the ordinary course of business consistent with past practice); provided, however, that notwithstanding any other provision of this Agreement, neither the Company nor any of its Subsidiaries shall enter into any settlement of or compromise any litigation, claim, grievance, charge or proceeding that, whether at the time of the settlement or compromise or at any time in the future, materially increases the labor or operating costs of the Company or any of its subsidiariesSubsidiaries or places any material restrictions on the ability of the Company or any of its Subsidiaries to impose any labor saving or other cost reduction measures;
(ql) not neither it nor any of its Subsidiaries shall make or rescind any material Tax election, amend any material Tax Return or permit any insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated, in each case except in a manner consistent with past practice or as required by applicable Law;
(m) other than with respect to any actions permitted under Section 7.2, neither it nor any of its Subsidiaries shall take any action or omit to take any action that would, or would be is reasonably likely to, to result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on conditions to the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions Merger set forth in Article 7 or 8 VIII not being satisfied; and
(rn) except as to subsections (a)neither it nor any of its Subsidiaries will authorize any of, (b) and (c) of Section 5.1or commit, not agree resolve or commit agree, in writing or otherwise 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 (Symbol Technologies Inc), Merger Agreement (Motorola Inc)
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 of on the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Parent, which agreement, in the case of clauses (h), (i), (j) or (l) (or, to the extent relating to any of the foregoing clauses, clause (q)), shall not be unreasonably withheld or delayed, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, or in substitution for, shares except for issuances of its stockCommon Shares upon the exercise of Options outstanding as of the date hereof, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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;
), (giii) not amend sell, transfer or otherwise modify 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 terms corporate structure or ownership of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, (iv) amend or grant any severance otherwise change its certificate of incorporation or termination pay to, bylaws or enter into any employment or severance agreement with any director or officer of the Company or permit any of its subsidiariessubsidiaries to amend its certificate of incorporation, bylaws or establishequivalent organizational documents or (v) split, adopt, enter into combine or amend in reclassify 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 shares of its capital 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 of the Company of and shall not permit any of its subsidiariessubsidiaries to split, combine or reclassify any shares of its capital stock;
(c) the Company shall not, and shall not permit any of its subsidiaries to (i) not declare, set aside or pay any dividends on (whether in cash, stock or other property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company), (ii) acquire or agree to acquire (acquire, including, without limitation, by merger, consolidationmerging or consolidating with, or acquisition of stock, purchasing the assets or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof, (iii) authorize or otherwise acquire or agree to acquire make any assets capital expenditures in excess of any other person outside the ordinary course of business consistent with past practice or any interest in any real properties (whether or not $100,000 in the ordinary course aggregate (other than pursuant to commitments prior to the date hereof disclosed in Section 5.01(c) of business);
(j) not incur, assume or guarantee any indebtedness for borrowed money (including draw-downs on letters or lines of creditthe Company Disclosure Schedule) or issue (iv) enter into, amend, modify or sell supplement any notesagreement, bondstransaction, debenturescommitment or arrangement with any current or former officer, debt instrumentsdirector, evidences of indebtedness employee or other debt securities affiliate of the Company or any of its subsidiaries (or any options, warrants or rights to purchase or acquire affiliate of the foregoing) other than as contemplated by this Agreement;
(d) neither the Company nor any of the same, except for its subsidiaries shall (i) renewals grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except (A) for increases and bonuses expressly contemplated by or required under existing employment agreements or bonus plans listed in Section 5.01(d) of existing bonds and letters of credit the Company Disclosure Schedule, (B) for increases in the ordinary course of business not compensation to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness employees in the ordinary course of business consistent with past practice (but in an aggregate amount no event greater than 5% for any individual employee whose reasonably anticipated annual compensation is greater than $150,000 or 10% for any individual employee whose reasonably anticipated annual compensation is equal to or less than $150,000), (C) in connection with accelerating the vesting schedules of the Options and terminating the Options and the Stock Plans and (D) as set forth on Section 5.01(d) of the Company Disclosure Schedule, (ii) hire any employee except (1) the replacement of any current employee of the Company or any of its subsidiaries whose employment with the Company or any of its subsidiaries is terminated for any reason (with such replacement employee receiving substantially similar compensation and benefits as such terminated employee) and (2) any new employee (other than replacement employees) whose reasonably anticipated annual base salary and bonus will not to exceed $100,000100,000 individually or $500,000 in the aggregate among all such new employees, (iii) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), 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) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), pay any benefit not required by any plan or arrangement as in effect as of the date hereof (including, without limitation, securities exchangeable 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 in connection with accelerating the vesting schedules of the Options and terminating the Options and the Stock Plans and except for the payment of the employer match under the Company’s 401(k) plan;
(ke) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, mortgage or otherwise 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 ofof (including through any sale-leaseback or similar transaction), any material of its properties or assets other than (i) pursuant to existing contracts and commitments described in Section 5.01(e) of the Company Disclosure Schedule, (ii) immaterial properties or any assets (or immaterial portions of its subsidiaries;
properties or assets), (liii) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iv) licenses granted by the Company in the ordinary course of business to customers for such customers’ use of the Company’s products and services and (v) Permitted Liens;
(f) the Company shall not, and shall not amendpermit any of its subsidiaries to (i) incur, modify assume or terminate pre-pay any Contract required indebtedness for borrowed money or enter into any agreement to be listed in Section 3.15 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 Disclosure Schedule or waiveany of its subsidiaries, release guarantee any debt securities of others, enter into any “keep well” or assign other agreement to maintain any material rights financial statement condition of another person or claims thereunderenter into any arrangement having the economic effect of any of the foregoing, (ii) make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than loans between or among the Company and any of its wholly-owned subsidiaries and cash advances to the Company’s or any such subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice or (iii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the obligations of the subsidiaries of the Company permitted under this Agreement;
(pg) not 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 subsidiariessubsidiaries (other than any transaction specifically contemplated by this Agreement or as permitted by Section 5.10);
(qh) the Company shall not, and shall not take permit any of its subsidiaries to, (i) enter into, or materially amend, modify or supplement any Material Contract outside the ordinary course of business consistent with past practice (except as may be necessary for the Company to comply with its obligations hereunder) or (ii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a Material Contract or otherwise);
(i) except for customer contracts entered into in the ordinary course of business, the Company shall not, and shall not permit its subsidiaries to, renegotiate or enter into any new license, agreement or arrangement relating to any Proprietary Rights;
(j) the Company and its subsidiaries (i) shall comply 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) shall use commercially reasonable efforts not to permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(k) the Company shall not, and shall not permit any of its subsidiaries to, (i) establish or acquire any subsidiary other than wholly-owned subsidiaries or (ii) amend, modify or waive any term of any outstanding security of the Company or any of its subsidiaries, except (1) in connection with accelerating the vesting schedules of the Options or (2) in connection with terminating the Options and the Stock Plans;
(l) the Company shall, and shall cause its subsidiaries to, (i) maintain any real property to which the Company and any of its subsidiaries have ownership or 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 such real property and the use and operation thereof;
(m) the Company shall not, and shall not permit any of its subsidiaries to, (i) settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate the Company and its subsidiaries to make aggregate cash payments (excluding amounts covered by insurance) exceeding $300,000, (ii) change any of the material accounting policies, practices or procedures (including material tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in U.S. generally accepted accounting principles, (iii) revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as required by U.S. generally accepted accounting principles or (iv) make or change any material tax election, make or change any material method of accounting with respect to Taxes except as may be required as a result of applicable Law, settle or compromise any material Tax liability or file any material amended Tax Return that would increase the tax liability of the Company or its subsidiaries after the Effective Time;
(n) the Company shall not, and shall not permit any of its subsidiaries to, take, or agree or commit to take, any action that would, or would be is reasonably likely to, make any representation or warranty of the Company contained in this Agreement inaccurate at, or as of any time prior to, the Effective Time or result in any of the representations conditions to the Merger set forth in Article 6 not being satisfied, or omit, or agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at any such time or to prevent any such condition from not being satisfied;
(o) except as otherwise permitted by Section 5.01(m), the Company shall not, and warranties shall not permit any of its subsidiaries to, pay, discharge or satisfy any material claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected on or reserved in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice;
(p) the Company shall not, and shall not permit any of its subsidiaries to, incur any Expenses other than those that are reasonably necessary to consummate the Merger in accordance with the terms set forth in this Agreement not being true and correct in or to defend any material lawsuits with respect (as if such representation to, arising from or warranty were made and in effect on related to the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfiedTransactions; and
(rq) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Datastream Systems Inc), Merger Agreement (Magellan Holdings, Inc.)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 of on the Company Disclosure Schedule or as expressly contemplated agreed to by any other provision of this Agreement, unless the Parent has consented in writing theretoParent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu ofexcept for issuances of Common Shares upon the exercise of Options outstanding on the date hereof, or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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);
(gc) not amend or otherwise modify the terms of any Company Stock Options or the Company Option Planshall not (i) sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it in any of its material subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the effect corporate structure or ownership of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, (ii) amend or otherwise change the Company Certificate or Company 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, and shall not permit any of its subsidiaries to split, combine or reclassify any 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 dividends on (whether in cash, stock or property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company with respect to capital stock);
(e) neither the Company nor any of its subsidiaries shall (i) grant or agree to any material increase in any manner 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, and except in connection with accelerating the vesting schedules of the Options and terminating the Options and the Stock Option Plans, (ii) enter into any new or materially amend any existing employment, severance or termination pay to, or enter into any employment or severance agreement with any director current, prospective or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 former director, officer or employee of the Company of any of its subsidiaries;
Company, (iiii) not acquire except as may be required to comply with applicable Law and except as provided or agree to acquire otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), become obligated under any employee benefit plan that was not in existence on the date hereof or amend, modify or terminate any Company 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, (iv) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), pay any benefit not required by mergerany plan or arrangement as in effect as of the date hereof (including, consolidationwithout limitation, the granting of, acceleration of, exercisability of or vesting of stock options, stock appreciation rights or restricted stock), except in connection with accelerating the vesting schedules of the Options and terminating the Options and the Stock Option Plans and except for the payment of the employer match under the Company’s 401(k) plan;
(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 acquisition of stock, purchasing all or substantially all the assets or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or otherwise acquire or agree to acquire any thereof, other than purchases of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice and not in an aggregate amount not to exceed excess of $100,00050,000 in any one instance or $250,000 in the aggregate;
(kg) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, mortgage or otherwise 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 material of its properties or assets of the Company other than (i) properties or any of its subsidiaries;
(l) assets not authorize or make any capital expenditures (including by lease) in excess of $100,000 25,000 in one instance or $250,000 in the aggregate for the Company and all of its subsidiaries;
aggregate, (mii) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iii) nonexclusive licenses granted by the Company in the ordinary course of business to customers for such customers’ use of the Company’s products and services and (iv) liens relating to Taxes that are not yet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with generally accepted accounting principles;
(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, guarantee any debt securities of others, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing;
(i) the Company shall not, and shall not permit any of its subsidiaries to, make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than loans between or among the Company and any of its wholly-owned subsidiaries and cash advances to the Company’s or any such subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice;
(j) the Company shall not, and shall not permit any of its subsidiaries to, assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the obligations of the subsidiaries of the Company permitted under this Agreement;
(k) the Company and its subsidiaries (i) shall continue in force 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;
(l) 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;
(m) the Company shall not, and shall not permit any of its subsidiaries to, amend, modify or terminate waive any Contract required to be listed in Section 3.15 term of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization outstanding security of the Company or any of its subsidiaries, except (i) as required by this Agreement, (ii) in connection with accelerating the vesting schedules of the Options to the extent required by the Stock Option Plans or the agreements pursuant to which such Options were granted, and (iii) in connection with terminating the Options and the Stock Option Plans;
(n) the Company shall not, and shall not permit any of its subsidiaries to, enter into any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law;
(o) the Company shall not, and shall not permit any of its subsidiaries to, settle or compromise any pending or threatened suit, action, claim or litigation (except in the ordinary course of business), the settlement or compromise of which would result in payments by the Company in excess of $25,000;
(p) the Company shall not, and shall not permit any of its subsidiaries to, change any of the material accounting policies, practices or procedures (including material Tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in United States generally accepted accounting principles;
(q) the Company shall not, and shall not take permit any action that would, or would be reasonably likely of its subsidiaries to, make or change any material tax election, make or change any material method of accounting with respect to Taxes except as may be required as a result of a change in applicable Law, settle or compromise any material tax liability or file any material amended Tax Return;
(r) 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 (i) the representations payment, discharge or satisfaction in the ordinary course of business and warranties set forth consistent with past practice of liabilities reflected or reserved against in this Agreement the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice or (ii) the payment of the Company’s Expenses (as defined herein), including the payment of the fees and expenses of the Special Committee and the costs, fees and expenses incurred by the Special Committee, which shall not being true exceed in the aggregate $5,000,000;
(s) the Company shall not, and correct shall not permit any of its subsidiaries to, transfer or license to any third party or otherwise amend or modify in any material respect any contract relating to Company Intellectual Property other than the grant in the ordinary course of business of non-exclusive licenses to customers in connection with the sale of Company Products;
(as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereoft) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 Section 5.01(t) of the Company Disclosure Schedule, the Company shall not being satisfiedhave amended the Rights Plan in any manner without the prior consent of Parent; and
(ru) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Onesource Information Services Inc)
Interim Operations. From The Company covenants and agrees as to itself and its Subsidiaries that, after the date of this ------------------ Agreement until hereof and prior to the Closing Time, Effective Time (unless Parent shall otherwise approve in writing and except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:):
(a) conduct the business of it and its business and operations only Subsidiaries shall be conducted in the ordinary and usual course of and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve its business consistent organization intact and maintain its existing relations and goodwill with past practicecustomers, suppliers, distributors, strategic partners, creditors, lessors, employees and business associates;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
it shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grantpledge, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge dispose of or encumber any shares of any class or series of capital stock of the Company or owned by it in any of its subsidiaries Subsidiaries; (ii) amend its articles of organization or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any 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 such shares, securities or interests by-laws; (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (iiii) split, combine or reclassify any its outstanding 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 capital stock, ; (iiiv) in solely the case of the Company, declare, set aside or pay any dividends ondividend payable in cash, stock or make other distributions property in respect of, of any of the Company's stock, capital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (iiiv) except as required under Section 2.1, repurchasepurchase, redeem or otherwise acquire, except for the acquisition of shares of Company Common Stock from holders of Company Stock Options in full or agree partial payment of the exercise price payable by such holder upon exercise of Company Stock Options to the extent required or commit permitted under the terms of such Company Stock Options, or permit any of its Subsidiaries to repurchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity any securities convertible into or debt securities exchangeable or equity interests exercisable for any shares of the Company or its capital stock;
(c) neither it nor any of its subsidiaries;
Subsidiaries shall (gi) not amend issue, sell, pledge, dispose of or otherwise modify the terms 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 Voting Debt or any other property or assets (other than shares of Company Common Stock issuable pursuant to options and other stock-based awards outstanding on the date hereof under the Company Stock Options Plans or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees upon conversion of the Company Convertible Senior Notes); (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of, abandon, cancel, surrender or any of its subsidiaries, allow to lapse or grant any severance expire or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or amend in encumber any material respect property or take action to accelerate any material rights or benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, assets (including capital 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 of the Company of any of its subsidiariesSubsidiaries) or business;
(d) neither it nor any of its Subsidiaries shall restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or otherwise enter into any agreement or arrangement imposing material changes or restrictions on the operation of its assets or businesses or adopt resolutions providing for or authorizing any of the foregoing;
(e) neither it nor any of its Subsidiaries shall acquire (i) not acquire by merging or agree to acquire (including, without limitation, by merger, consolidationconsolidating with, or acquisition by purchasing all or a substantial portion of stock, equity securities the assets of or interestsany stock of, or assets) by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof thereof, or otherwise acquire or agree to acquire (ii) any assets that are material, individually or in the aggregate, to the Company and any of any other person outside its Subsidiaries, taken as a whole, except purchases of inventory and raw materials in the ordinary course of business consistent with past practice business;
(f) neither it nor any of its Subsidiaries shall adopt or implement any stockholder rights plan, “poison pill” anti-takeover plan or other similar plan, device or arrangement that, in each case, is applicable to Parent or any interest in of its Affiliates, the Agreement or any real properties of the transactions contemplated by this Agreement;
(whether g) neither it nor any of its Subsidiaries shall (i) incur any indebtedness for borrowed money or not guarantee any such indebtedness of another Person (other than pursuant to existing credit facilities in the ordinary course of business);
, (jii) not incurissue, assume sell or guarantee amend any indebtedness for borrowed money (including draw-downs on letters debt securities or lines of credit) or issue or sell any notes, bonds, debentures, debt instruments, evidences of indebtedness warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any options, warrants financial statement condition of another Person or rights to purchase or acquire enter into any arrangement having the economic effect of any of the sameforegoing, except for (iiii) renewals make any loans, advances (other than routine advances to employees of existing bonds the Company and letters of credit its Subsidiaries in the ordinary course of business not to exceed $100,000 in the aggregate; and (iibusiness) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, encumber or otherwise dispose ofcapital contributions to, or agree to sell, lease, license, encumber or otherwise dispose ofinvestment in, any material properties or assets of other Person, other than the Company or any of its subsidiariesdirect 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;
(lh) not authorize or neither it nor any of its Subsidiaries shall make any capital expenditures (including by lease) or other expenditures with respect to property, plant or equipment in excess of $100,000 250,000 in the aggregate for the Company and all 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 its subsidiariesthe Company Disclosure Schedule;
(mi) not neither it nor any of its Subsidiaries shall make any material change changes in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except insofar as may be have been required by GAAPa change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(nj) not make neither it nor any material tax election or settle or compromise any material United States or foreign tax liability;
(o) of its Subsidiaries shall, except in the ordinary course of business consistent with past practice, not enter into, renew, modify, amend, modify or terminate any Contract required to be listed in Section 3.15 of terminate, waive, delay the Company Disclosure Schedule or waiveexercise of, release or assign any material rights or claims thereunder;
(p) not adopt a plan of complete or partial liquidationunder, dissolutionany Company Material Contract; provided, mergerthat, consolidation, restructuring, recapitalization or other reorganization of nothing herein shall permit the Company or any of its subsidiariesSubsidiaries to (1) 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 (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;
(qk) 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, 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 2%), (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 grants of options to purchase Company Common Stock to new hires in the ordinary course of business, which options (1) shall have an exercise price equal to the fair market value of the Company Common Stock on the date of grant (determined in a manner consistent with the Company’s existing practice for establishing fair market value for option grants) and (2) shall otherwise be upon the Company’s customary terms 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) neither it nor any of its Subsidiaries shall initiate, settle or compromise any material litigation, claim, grievance, charge or proceeding (other than in connection with the enforcement of the Company’s rights under this Agreement);
(m) neither it nor any of its Subsidiaries shall make or rescind any Tax election, amend any Tax Return 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;
(n) neither it nor any of its Subsidiaries shall take any action or omit to take any action that would, or would be is reasonably likely to, to result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on conditions to the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions Merger set forth in Article 7 or 8 VIII not being satisfied; and
(ro) except as to subsections (a)neither it nor any of its Subsidiaries will authorize any of, (b) and (c) of Section 5.1or commit, not agree resolve or commit agree, in writing or otherwise otherwise, to do take, any of the foregoingforegoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Computer Associates International Inc), Merger Agreement (Concord Communications Inc)
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 5.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent with past practice;
(b) and the Company and its subsidiaries shall use their commercially reasonable efforts to preserve intact their current business organizations, keep available the businessservices of their current officers and employees and preserve their relationships and goodwill with their material distributors, organization, goodwill, rights, licenses, permits customers and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and any other persons material third parties having business dealings with them;.
(cb) 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;
the Company shall not (di) not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, or in substitution for, shares except for issuances of its stockCommon Shares upon the exercise of Options outstanding as of the date hereof, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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;
), (giii) not amend sell, transfer or otherwise modify 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 terms corporate structure or ownership of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, (iv) amend or grant any severance otherwise change its articles of incorporation or termination pay to, bylaws or enter into any employment or severance agreement with any director or officer of the Company or permit any of its subsidiariessubsidiaries to amend its articles of incorporation, bylaws or establishequivalent organizational documents or (v) split, adopt, enter into combine or amend in reclassify 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 shares of its capital 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 of the Company of and shall not permit any of its subsidiariessubsidiaries to split, combine or reclassify any shares of its capital stock;
(c) the Company shall not, and shall not permit any of its subsidiaries to (i) not declare, set aside or pay any dividends on (whether in cash, stock or other property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company), (ii) acquire or agree to acquire (acquire, including, without limitation, by merger, consolidationmerging or consolidating with, or acquisition purchasing the assets (except raw materials, inventory or supplies in the ordinary course of stock, business) or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof, (iii) authorize or otherwise acquire or agree to acquire make any assets capital expenditures in excess of any other person outside $200,000 (the ordinary course of business consistent with past practice or any interest in any real properties (whether or not “Capital Expenditures Excess Amount”) in the ordinary course aggregate in addition to the amount set forth in the Company’s budget for capital expenditures for the period of businesstime between the date hereof and the Effective Time (which capital budget is set forth in Section 5.01(c) of the Company Disclosure Schedule);
, or (jiv) not incurenter into, assume amend, modify or guarantee supplement any indebtedness for borrowed money (including draw-downs on letters agreement, transaction, commitment or lines of credit) arrangement with any current or issue or sell any notesformer officer, bondsdirector, debentures, debt instruments, evidences of indebtedness employee or other debt securities affiliate of the Company or any of its subsidiaries (or any options, warrants or rights to purchase or acquire affiliate of any of the sameforegoing) other than as contemplated by this Agreement;
(d) neither the Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except for (iA) renewals increases and bonuses expressly contemplated by or required under existing employment agreements or (B) bonus plans and other agreements and arrangements listed or described in Section 5.01(d) of existing bonds the Company Disclosure Schedule and letters of credit except in connection with terminating the ordinary course of business not to exceed $100,000 in Options and the aggregate; and Stock Plans, (ii) advancesenter into any new or materially amend any existing employment, loans consulting, severance, termination, change-of-control or indemnification agreement with any current or former 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, without limitation, Section 2.02 hereof), 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 indebtedness 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 ordinary course date hereof or (iv) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), pay any benefit not required by any plan or arrangement as in effect as of business consistent the date hereof (including, without limitation, 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 past practice in an aggregate amount not to exceed $100,000terminating the Options and the Stock Plans and except for the payment of the employer match under the Company’s 401(k) plan;
(ke) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) immaterial properties or assets (or immaterial portions of the Company properties or any of its subsidiaries;
assets), (lii) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iii) licenses granted by the Company in the ordinary course of business to customers for such customers’ use of the Company’s products and services, (iv) Liens relating to Taxes that are not amendyet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with U.S. generally accepted accounting principles, modify (v) Liens for assessments and other governmental charges or terminate Encumbrances of landlords, carriers, warehousemen, mechanics and repairmen incurred in the ordinary course of business, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith and for which adequate reserves have been established and (vi) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations;
(f) the Company shall not, and shall not permit any Contract required of its subsidiaries to be listed in Section 3.15 (i) incur, assume or pre-pay any Indebtedness or enter into any agreement to incur, assume or pre-pay 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 Disclosure Schedule or waiveany of its subsidiaries, release guarantee any debt securities of others, enter into any “keep well” or assign other agreement to maintain any material rights financial statement condition of another person or claims thereunderenter into any arrangement having the economic effect of any of the foregoing, (ii) make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than loans between or among the Company and any of its wholly-owned subsidiaries and cash advances to the Company’s or any such subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice or (iii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the obligations of the subsidiaries of the Company permitted under this Agreement;
(pg) not 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 subsidiariessubsidiaries (other than any transaction specifically contemplated by this Agreement);
(qh) the Company shall not, and shall not take permit any of its subsidiaries to, (i) enter into, or materially amend, modify or supplement any Material Contract outside the ordinary course of business consistent with past practice (except as may be necessary for the Company to comply with its obligations hereunder) or (ii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a Material Contract or otherwise);
(i) except for customer contracts entered into in the ordinary course of business, the Company shall not, and shall not permit its subsidiaries to, renegotiate or enter into any new license, agreement or arrangement relating to any Proprietary Rights;
(j) the Company and its subsidiaries (i) shall comply 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) shall not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(k) the Company shall not, and shall not permit any of its subsidiaries to, (i) establish or acquire any subsidiary other than wholly-owned subsidiaries or subsidiaries organized outside of the United States and its territorial possessions, (ii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected on or reserved in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice or (y) the payment of the Company’s Expenses (as defined herein); (iii) amend, modify or waive any term of any outstanding security of the Company or any of its subsidiaries, except in connection with terminating the Options and the Stock Plans;
(l) the Company shall, and shall cause its subsidiaries to, (i) maintain any real property to which the Company and any of its subsidiaries have ownership or 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 material taxes, water and sewage rents, assessments and insurance premiums affecting such real property other than those it is validly contesting and (iii) timely comply in all material respects with the terms and provisions of all leases, contracts and agreements relating to such real property and the use and operation thereof;
(m) the Company shall not, and shall not permit any of its subsidiaries to, (i) settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate the Company and its subsidiaries to make aggregate cash payments exceeding $50,000, (ii) change any of the material accounting policies, practices or procedures (including material tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in U.S. generally accepted accounting principles, (iii) revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as required by U.S. generally accepted accounting principles or (iv) make or change any material tax election, make or change any material method of accounting with respect to Taxes except as may be required as a result of a change in applicable Law, settle or compromise any material Tax liability or file any material amended Tax Return;
(n) the Company shall not, and shall not permit any of its subsidiaries to knowingly take, or knowingly agree or commit to take, any action that would, or would be is reasonably likely to, make any representation or warranty of the Company contained in this Agreement inaccurate in any material respect at, or as of any time prior to, the Effective Time or result in any of the representations and warranties conditions to the Merger set forth in this Agreement Article 6 not being true and correct satisfied, or knowingly omit, or knowingly agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect (as if at any such representation time or warranty were made and in effect on the date to prevent any such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 condition from not being satisfied; and
(ro) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 of on the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Melita (which consent shall not be unreasonably conditioned, withheld or delayed), the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its except as otherwise described in Section 5.01(a) of the Company Disclosure Schedule, the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, convertible securities or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, other securities or interests equity equivalents (other than including without limitation stock appreciation rights or phantom interests), except for issuances of Common Shares upon the exercise of Company Stock Options granted outstanding on or prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine hereof or 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) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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 the purchase of Common Shares pursuant to the Company’s buy-back program;
(gc) not amend or otherwise modify the terms of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, encumber transfer or otherwise dispose ofpledge, or agree to sell, lease, license, encumber transfer or otherwise dispose ofpledge, any equity interest owned by it in any of its material properties subsidiaries or assets alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(notherwise provided on Section 5.01(c) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule Schedule, (ii) amend or waive, release otherwise change its certificate of incorporation or assign any material rights bylaws or claims thereunder;
(p) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or permit any of its subsidiaries;subsidiaries to amend its certificate of incorporation, bylaws or equivalent organizational documents or
(qiii) split, combine or reclassify any shares of its capital stock, and shall not take any action that would, or would be reasonably likely to, result in permit any of the representations and warranties set forth in this Agreement not being true and correct in its subsidiaries to split, combine or reclassify any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any shares of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.its capital stock;
Appears in 1 contract
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 8 hereof):
(a) conduct its the business and operations of the Company and its Subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its Subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or Subsidiaries, any other equity securities or voting security or equity or voting interest in the Company or any of its subsidiaries, any securities convertible into or exercisable into, or exchangeable for any rights, warrants or options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for issuances of Common Shares upon the exercise of Options outstanding as of the date hereof or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its Subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity or debt securities or equity interests of the Company or any of its subsidiariesSubsidiaries (including, without limitation, securities exchangeable 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);
(gc) 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 modify the terms change its charter, articles of incorporation or bylaws or permit any Company Stock Options of its Subsidiaries to amend its articles of incorporation, bylaws or the Company Option Planequivalent organizational documents or (iii) split, the effect combine or reclassify any shares of which its capital stock, and shall be not permit any of its Subsidiaries to make such terms more favorable to the holders thereof split, combine or persons eligible for participation thereinreclassify any shares of its capital stock;
(hd) the Company shall not, and shall not permit any of its Subsidiaries to, declare, set aside or pay any dividends on (whether in cash, stock or other than regularly scheduled seniority property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of the Company consistent with past practices);
(e) neither the Company nor any of its Subsidiaries shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except increases in the ordinary course of business consistent with past practicepractice of less than 10% of each such individual's salary for non-officer employees, not increase the compensation payable increases and bonuses expressly contemplated by or to become payable to any directorsrequired under existing employment agreements, officers bonus plans and other agreements and arrangements listed or employees described in Section 6.01(e) of the Company or any Disclosure Schedule and except in connection with accelerating the vesting schedules of its subsidiariesthe Options and terminating the Options and the Stock Plans, or grant any severance or termination pay to, or (ii) enter into any employment new or severance materially amend any existing employment, consulting, severance, termination, change-of-control or indemnification agreement with any director current or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 former director, officer or employee of the Company, (iii) except as set forth in Section 6.01(e) of the Company of any of its subsidiaries;
(i) not acquire Disclosure Schedule, as may be required to comply with applicable Law and as provided or agree to acquire otherwise contemplated in this Agreement (including, without limitation, Section 3.02 hereof), 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) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 3.02 hereof), pay any benefit not required by mergerany plan or arrangement as in effect as of the date hereof (including, consolidationwithout limitation, 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 accelerating the vesting schedules of the Options and terminating the Options and the Stock Plans;
(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 acquisition of stock, purchasing the assets or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof other than non-taxable transfers by or otherwise acquire or agree to acquire any assets of any other person outside among 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)Company's Subsidiaries;
(jg) 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 shall not, and shall not permit any of its subsidiaries or any optionsSubsidiaries to, warrants or rights to purchase or acquire any of the same, except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) pursuant to existing contracts and commitments described in Section 6.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or any assets (or immaterial portions of its subsidiaries;
(lproperties or assets, including those described in Section 6.01(g) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
Disclosure Schedule), (miii) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iv) Permitted Liens, (v) Liens relating to Taxes that are not amendyet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with U.S. generally accepted accounting principles and (vi) other than non-taxable transfers by or among the Company's Subsidiaries;
(h) the Company shall not, modify or terminate and shall not permit any Contract required of its Subsidiaries to, issue any letter of credit other than pursuant to be listed the issuance of letters of credit in Section 3.15 the ordinary course of business consistent with past practices of the Company Disclosure Schedule and its Subsidiaries in an amount not to exceed $10,000,000 in the aggregate, incur, assume or waivepre-pay any Indebtedness, release enter into any agreement to incur, assume or assign pre-pay any material Indebtedness, guarantee, or agree to guarantee, any such Indebtedness or obligation of another person, 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 claims thereunderany of its Subsidiaries, guarantee any debt securities of others, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing;
(pi) the Company shall not, and shall not permit any of its Subsidiaries to, make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than (i) loans or advances in the ordinary course of business to facilitate construction or renovation of stores pursuant to Material Contracts in an amount not to exceed $2,000,000 in the aggregate, (ii) such loans between or among the Company and any of its wholly-owned Subsidiaries and (iii) cash advances to the Company's or any such Subsidiary's employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice;
(j) the Company shall not, and shall not permit any of its Subsidiaries to, assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except 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, 41 recapitalization or other reorganization of the Company or any of its subsidiariesSubsidiaries (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, or materially amend, modify or supplement any Contract outside the ordinary course of business consistent with past practice (except as may be necessary for the Company to comply with its obligations hereunder), (ii) enter into, or materially amend, modify or supplement, any Lease or Material Contract, or (iii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a 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 or other planned capital expenditures in the ordinary course of business consistent with past practices disclosed in Section 6.01(m) of the Company Disclosure Schedule by category) or make any commitments with respect to capital expenditures or other planned capital expenditures in the ordinary course of business consistent with past practices in excess of $1,000,000 in the aggregate;
(n) except for customer contracts entered into in the ordinary course of business, the Company shall not, and shall not permit its Subsidiaries to, renegotiate or enter into any new license, agreement or arrangement relating to any Intellectual Property;
(o) the Company and its Subsidiaries (i) shall continue in force insurance with good and responsible insurance companies adequately covering risks of such types and in such amounts as are consistent with the Company's past practices and (ii) shall use reasonable best efforts not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(p) 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;
(q) the Company shall not, and shall not take permit any of its Subsidiaries to, amend, modify or waive any term of any outstanding security of the Company or any of its Subsidiaries, except (i) as required by this Agreement, (ii) except as set forth in Section 6.01(q) of the Company Disclosure Schedule, in connection with accelerating the vesting schedules of the Options to the extent required by the Stock Plans or the agreements pursuant to which such Options were granted or (iii) in connection with terminating the Options and the Stock Plans;
(r) the Company shall, and shall cause its Subsidiaries to, (i) maintain any real property of which the Company and any of its Subsidiaries have ownership or a leasehold interest (including, without limitation, the furniture, fixtures, equipment and systems therein) in its current condition in all material respects, subject to reasonable wear and tear and subject to any casualty or condemnation and Permitted Liens, subject to the expiration of real property in accordance with their terms or (ii) pay, prior to the imposition of any Lien or material penalty all taxes, water and sewage rents, assessments and insurance premiums affecting such real property or contest them in good faith;
(s) the Company shall not, and shall not permit any of its Subsidiaries to, enter into or materially amend any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law;
(t) the Company shall not, and shall not permit any of its Subsidiaries to, conduct any plant closing or layoff that could implicate the WARN Act;
(u) the Company shall not, and shall not permit any of its Subsidiaries to, settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate the Company and its Subsidiaries to make aggregate cash payments exceeding $25,000 individually or $125,000 in the aggregate;
(v) except as set forth in Section 6.01(v) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries 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 the date hereof, except as may be required as a result of a change in applicable Law or in U.S. generally accepted accounting principles;
(w) the Company shall not, and shall not permit any of its Subsidiaries to, revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as required by U.S generally accepted accounting principles;
(x) the Company shall not, and shall not permit any of its Subsidiaries to, pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (i) the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of Liabilities reflected on or reserved in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice, (ii) the payment of the Company's Expenses (as defined herein), including the payment of the fees and expenses of the Special Committee and the costs, fees and expenses incurred by the Special Committee or (iii) the payment of claims under any of the Benefit Plans;
(y) the Company shall not, and shall not permit any of its Subsidiaries to, knowingly and intentionally take, or agree or commit to take, any action that would, or would be is reasonably likely to, make any representation or warranty of the Company contained in this Agreement inaccurate at, or as of any time prior to, the Effective Time or result in any of the representations and warranties set forth in this Agreement not being true and correct in conditions to the Offer or any material respect (as if such representation or warranty were made and in effect on conditions to the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions Merger set forth in Article 7 or 8 not being satisfied; and, or knowingly and intentionally omit, or agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate at any such time or to prevent any such condition from not being satisfied;
(rz) the Company shall not, and shall not permit any of its Subsidiaries to make or change any material tax election or change an annual accounting period with respect to Taxes, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle or compromise any Tax claim, assessment or liability relating to the Company or any of its Subsidiaries, or surrender any right to claim a refund of Taxes, except as to subsections (a), (b) and (cset forth in Section 6.01(z) of Section 5.1the Company Disclosure Schedule, not agree consent to any extension or commit in writing waiver of the limitation period applicable to any Tax claim or otherwise assessment relating to do the Company or any of its Subsidiaries, or take any other similar action, or omit to take any action relating to the foregoing.filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other
Appears in 1 contract
Sources: Acquisition Agreement (Goodys Family Clothing Inc /Tn)
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 5.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent with past practice;
(b) and the Company and its subsidiaries shall use their commercially reasonable efforts to preserve intact their current business organizations, keep available the businessservices of their current officers and employees and preserve their relationships and goodwill with their material distributors, organization, goodwill, rights, licenses, permits customers and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and any other persons material third parties having business dealings with them;.
(cb) 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;
the Company shall not (di) not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, or in substitution for, shares except for issuances of its stockCommon Shares upon the exercise of Options outstanding as of the date hereof, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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;
), (giii) not amend sell, transfer or otherwise modify 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 terms corporate structure or ownership of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, (iv) amend or grant any severance otherwise change its articles of incorporation or termination pay to, bylaws or enter into any employment or severance agreement with any director or officer of the Company or permit any of its subsidiariessubsidiaries to amend its articles of incorporation, bylaws or establishequivalent organizational documents or (v) split, adopt, enter into combine or amend in reclassify 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 shares of its capital 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 of the Company of and shall not permit any of its subsidiariessubsidiaries to split, combine or reclassify any shares of its capital stock;
(c) the Company shall not, and shall not permit any of its subsidiaries to (i) not declare, set aside or pay any dividends on (whether in cash, stock or other property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company), (ii) acquire or agree to acquire (acquire, including, without limitation, by merger, consolidationmerging or consolidating with, or acquisition purchasing the assets (except raw materials, inventory or supplies in the ordinary course of stock, business) or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof, (iii) authorize or otherwise acquire or agree to acquire make any assets capital expenditures in excess of any other person outside $200,000 (the ordinary course of business consistent with past practice or any interest in any real properties (whether or not "Capital Expenditures Excess Amount") in the ordinary course aggregate in addition to the amount set forth in the Company's budget for capital expenditures for the period of businesstime between the date hereof and the Effective Time (which capital budget is set forth in Section 5.01(c) of the Company Disclosure Schedule);
, or (jiv) not incurenter into, assume amend, modify or guarantee supplement any indebtedness for borrowed money (including draw-downs on letters agreement, transaction, commitment or lines of credit) arrangement with any current or issue or sell any notesformer officer, bondsdirector, debentures, debt instruments, evidences of indebtedness employee or other debt securities affiliate of the Company or any of its subsidiaries (or any options, warrants or rights to purchase or acquire affiliate of any of the sameforegoing) other than as contemplated by this Agreement;
(d) neither the Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except for (iA) renewals increases and bonuses expressly contemplated by or required under existing employment agreements or (B) bonus plans and other agreements and arrangements listed or described in Section 5.01(d) of existing bonds the Company Disclosure Schedule and letters of credit except in connection with terminating the ordinary course of business not to exceed $100,000 in Options and the aggregate; and Stock Plans, (ii) advancesenter into any new or materially amend any existing employment, loans consulting, severance, termination, change-of-control or indemnification agreement with any current or former 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, without limitation, Section 2.02 hereof), 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 indebtedness 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 ordinary course date hereof or (iv) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), pay any benefit not required by any plan or arrangement as in effect as of business consistent the date hereof (including, without limitation, 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 past practice in an aggregate amount not to exceed $100,000terminating the Options and the Stock Plans and except for the payment of the employer match under the Company's 401(k) plan;
(ke) the Company shall not, and shall not permit any of its subsidiaries to, sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) immaterial properties or assets (or immaterial portions of the Company properties or any of its subsidiaries;
assets), (lii) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iii) licenses granted by the Company in the ordinary course of business to customers for such customers' use of the Company's products and services, (iv) Liens relating to Taxes that are not amendyet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with U.S. generally accepted accounting principles, modify (v) Liens for assessments and other governmental charges or terminate Encumbrances of landlords, carriers, warehousemen, mechanics and repairmen incurred in the ordinary course of business, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith and for which adequate reserves have been established and (vi) Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations;
(f) the Company shall not, and shall not permit any Contract required of its subsidiaries to be listed in Section 3.15 (i) incur, assume or pre-pay any Indebtedness or enter into any agreement to incur, assume or pre-pay 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 Disclosure Schedule or waiveany of its subsidiaries, release guarantee any debt securities of others, enter into any "keep well" or assign other agreement to maintain any material rights financial statement condition of another person or claims thereunderenter into any arrangement having the economic effect of any of the foregoing, (ii) make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than loans between or among the Company and any of its wholly-owned subsidiaries and cash advances to the Company's or any such subsidiary's employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice or (iii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the obligations of the subsidiaries of the Company permitted under this Agreement;
(pg) not 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 subsidiariessubsidiaries (other than any transaction specifically contemplated by this Agreement);
(qh) the Company shall not, and shall not take permit any of its subsidiaries to, (i) enter into, or materially amend, modify or supplement any Material Contract outside the ordinary course of business consistent with past practice (except as may be necessary for the Company to comply with its obligations hereunder) or (ii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a Material Contract or otherwise);
(i) except for customer contracts entered into in the ordinary course of business, the Company shall not, and shall not permit its subsidiaries to, renegotiate or enter into any new license, agreement or arrangement relating to any Proprietary Rights;
(j) the Company and its subsidiaries (i) shall comply 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) shall not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(k) the Company shall not, and shall not permit any of its subsidiaries to, (i) establish or acquire any subsidiary other than wholly-owned subsidiaries or subsidiaries organized outside of the United States and its territorial possessions, (ii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected on or reserved in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice or (y) the payment of the Company's Expenses (as defined herein); (iii) amend, modify or waive any term of any outstanding security of the Company or any of its subsidiaries, except in connection with terminating the Options and the Stock Plans;
(l) the Company shall, and shall cause its subsidiaries to, (i) maintain any real property to which the Company and any of its subsidiaries have ownership or 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 material taxes, water and sewage rents, assessments and insurance premiums affecting such real property other than those it is validly contesting and (iii) timely comply in all material respects with the terms and provisions of all leases, contracts and agreements relating to such real property and the use and operation thereof;
(m) the Company shall not, and shall not permit any of its subsidiaries to, (i) settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate the Company and its subsidiaries to make aggregate cash payments exceeding $50,000, (ii) change any of the material accounting policies, practices or procedures (including material tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in U.S. generally accepted accounting principles, (iii) revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as required by U.S. generally accepted accounting principles or (iv) make or change any material tax election, make or change any material method of accounting with respect to Taxes except as may be required as a result of a change in applicable Law, settle or compromise any material Tax liability or file any material amended Tax Return;
(n) the Company shall not, and shall not permit any of its subsidiaries to knowingly take, or knowingly agree or commit to take, any action that would, or would be is reasonably likely to, make any representation or warranty of the Company contained in this Agreement inaccurate in any material respect at, or as of any time prior to, the Effective Time or result in any of the representations and warranties conditions to the Merger set forth in this Agreement Article 6 not being true and correct satisfied, or knowingly omit, or knowingly agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect (as if at any such representation time or warranty were made and in effect on the date to prevent any such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 condition from not being satisfied; and
(ro) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing TimeAgreement, except as set forth in Section 5.1 of the Company Disclosure Schedule Schedule, or as expressly contemplated by any other provision of this Agreement, unless the Parent has otherwise consented to in writing theretoby Purchaser, which consent shall not be unreasonably conditioned, withheld or delayed, the Company shalland the Owners covenant and agree that, and shall cause each of its subsidiaries toprior to the Closing:
(a) conduct its The business and operations only of the Company shall be conducted in the ordinary course Ordinary Course of business Business consistent with past practice;
(b) The Company shall use its commercially reasonable efforts to preserve keep intact the business, organization, goodwill, its rights, licensesproperties and assets, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customersemployee, suppliers independent contractor, supplier, customer and other persons having business dealings with themrelationships;
(c) The Company shall use its commercially reasonable efforts to keep in full force and effect adequate insurance coverage and maintain and keep its rights, properties and assets in good repair, working order and their present condition, repair and working order, except for normal depreciation and wear and tear exceptedtear;
(d) The Company shall not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(ei) except as required under Section 2.1, not authorize for issuance, issue, deliver, sell, grantgrant options, deliverwarrants or rights to receive, pledge purchase or encumber subscribe for, or agree or commit to issue, sell, grant, deliver, pledge sell or encumber any shares deliver (whether through the issuance or granting 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 Company or any of its subsidiaries, any securities convertible into or exercisable or exchangeable for any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or subscriptions, rights to purchase or acquire otherwise), pledge or otherwise encumber any equity interests of such shares, Company (including securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu ofconvertible into, or in substitution forrights or options to acquire, shares equity interests of its stocksuch Company), (ii) in solely the case repurchase, redeem or otherwise acquire any equity interests of the Company, declare, set aside or pay any dividends onsuch Company (including securities convertible into, or make other distributions in respect ofrights or options to acquire, any equity interests of the such Company's stock), or (iii) except as required under Section 2.1, repurchase, redeem amend or otherwise change its Organizational Documents;
(e) The Company shall not acquire, including by merging or agree consolidating with, or commit to repurchase, redeem or otherwise acquire, any shares of stock or other equity or debt securities purchasing the assets 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiariesof, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or amend in any material respect other manner, any business 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 of 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 thereof, or otherwise acquire make any capital expenditures or agree to acquire any assets commitments in an amount in excess of any other person outside the ordinary course of business consistent with past practice or any interest in any real properties Twenty-Five Thousand Dollars (whether or not $25,000) in the ordinary course of business)aggregate, other than pursuant to existing agreements;
(jf) The Company shall 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 (i) renewals of increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, manager, officer, employee or independent contractor, other than (A) increases and bonuses expressly contemplated by or required under existing bonds employment or consulting agreements or bonus plans, and letters of credit (B) increases in compensation to employees in the ordinary course Ordinary Course of business not to exceed $100,000 in the aggregate; and Business, (ii) advancesexcept as required to comply with applicable Law, loans become obligated under any Benefit Plan that was not in existence on the date of this Agreement or other indebtedness amend, modify or terminate any Benefit Plan in existence on the ordinary course date of business consistent this Agreement, or (3) except as required to comply with past practice applicable Law, pay any benefit not required by any Benefit Plan as in an aggregate amount not to exceed $100,000effect as of the date of this Agreement;
(kg) The Company shall not sell, lease, license, subject to any Lien (other than a Permitted Lien) or otherwise encumber or otherwise dispose ofof (including through any sale-leaseback or similar transaction) any of its properties or assets, or agree other than (i) pursuant to sellexisting agreements, lease, license, encumber or otherwise dispose of, any material (ii) immaterial properties or assets (or immaterial portions of properties or assets), (iii) in the Ordinary Course of Business;
(h) The Company shall not (i) make or forgive any Company Indebtedness, loans, advances or capital contributions to, or investments in, any Person, other than trade accounts receivable incurred in the Ordinary Course of Business and cash advances to employees of the Company for reimbursable travel and other business expenses incurred in the Ordinary Course of Business, (ii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Indebtedness or other obligations of any other Person, or (iii) enter into any “keep well” or other agreement to maintain any financial statement condition of its subsidiariesanother Person;
(li) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the The Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) shall not adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(j) The Company shall not (i) enter into, or materially amend, modify or supplement outside the Ordinary Course of Business, any Material Contract or (ii) waive, release, grant, assign or transfer any of its subsidiariesmaterial rights or claims (whether such rights or claims arise under a Material Contract or otherwise);
(qk) The Company shall (i) comply in all material respects with its obligations under the Material Contracts as such obligations become due, (ii) maintain insurance covering risks of such types and in such amounts as are consistent with its past practices, and (iii) not take to permit any action that wouldinsurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(l) The Company shall not abandon, fail to maintain or allow to expire (other than at the natural expiration of its terms), or sell or exclusively license to any Person, any material Company Intellectual Property, except in the exercise of commercially reasonable business judgment consistent with industry practices;
(m) The Company shall not fail to pay or satisfy when due any material Liability of the Company (other than any such Liability that is being contested in good faith);
(n) The Company shall not settle or compromise any Action pending before any Governmental Authority, or any other material Action, against the Company, other than settlements or compromises which, in the aggregate, do not involve money damages;
(o) The Company shall not (i) change any material accounting policies, practices or procedures (including material tax accounting policies, practices and procedures), except as required by applicable Law or GAAP, (ii) revalue in any material respect any of its assets (including writing down or writing off any notes or accounts receivable in any material manner), except as required by GAAP, (iii) make or change any material tax election, make or change any material method of accounting with respect to Taxes except as required by applicable Law, (iv) settle or compromise any material Liability for any Tax, or (v) file any amended Tax Return that would be reasonably likely to, result in materially increase the Liability of the Company for any Tax after the Closing; and
(p) The Company shall not agree or commit to take any of the representations and warranties foregoing actions prohibited by this Section 5.1. Notwithstanding anything to the contrary set forth in this Agreement not being true Agreement, the parties acknowledge and correct in any material respect (as if such representation agree that neither Purchaser nor its Affiliates have the right to control or warranty were made direct the Company’s operations prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms of this Agreement, complete control and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoingsupervision over its operations.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Amn Healthcare Services Inc)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 of on the Company Disclosure Schedule or as expressly contemplated agreed to by Infor (which agreement, other than in the case of clauses (b), (c), (d), (e), (f), (g), (k), (l), (o), (q), (r), (s), (v) and (aa) below (and clause (bb) below, to the extent relating to any other provision of this Agreementthe foregoing items), unless the Parent has consented in writing theretoshall not be unreasonably withheld or delayed), the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) conduct its the business and operations of the Company and its subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its subsidiaries shall use their reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any other securities or any securities convertible into into, or exercisable any rights, warrants or exchangeable for options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for (A) issuances of Common Shares upon the exercise of Options and Warrants outstanding as of the date hereof and (B) issuances of Common Shares pursuant to the Purchase Plan or in substitution for, shares of its stock, the DSIP or (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or debt any of its subsidiaries (including, without limitation, securities exchangeable 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);
(gc) 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 modify the terms change its articles of incorporation or bylaws or permit any Company Stock Options of its subsidiaries to amend its articles of incorporation, bylaws or the Company Option Planequivalent organizational documents or (iii) split, the effect combine or reclassify any shares of which its capital stock, and shall be not permit any of its subsidiaries to make such terms more favorable to the holders thereof split, combine or persons eligible for participation thereinreclassify any shares of its capital stock;
(hd) the Company shall not, and shall not permit any of its subsidiaries to, declare, set aside or pay any dividends on (whether in cash, stock or other than regularly scheduled seniority property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company);
(e) neither the Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except (A) for increases and bonuses expressly contemplated by or required under existing employment agreements and bonus plans, (B) for increases in compensation to employees in the ordinary course of business consistent with past custom and practice, not increase (C) in connection with accelerating the compensation payable or to become payable to any directors, officers or employees vesting schedules of the Options and terminating the Options and the Stock Plans and (D) as set forth in Section 5.01(e) of the Company or any of its subsidiariesDisclosure Schedule, or grant any severance or termination pay to, or (ii) enter into any employment new or severance materially amend any existing employment, consulting, severance, termination, change-of-control or indemnification agreement with any director current or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 former director, officer or employee of the Company of any of its subsidiaries;
Company, (iiii) not acquire except as may be required to comply with applicable Law and except as provided or agree to acquire otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), 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) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), pay any benefit not required by mergerany plan or arrangement as in effect as of the date hereof (including, consolidationwithout limitation, 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 accelerating the vesting schedules of the Options and terminating the Options and the Stock Plans and except for the payment of the employer match under the Company’s 401(k) plan;
(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 acquisition of stock, purchasing the assets or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or 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)thereof;
(jg) 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 shall not, and shall not permit any of its subsidiaries or any optionsto, warrants or rights to purchase or acquire any of the same, except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) pursuant to existing contracts and commitments described in Section 5.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or any assets (or immaterial portions of its subsidiaries;
properties or assets), (liii) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, (iv) in the ordinary course of business, including without limitation, the grant of licenses by the Company to customers for such customers’ use of the Company’s products and services and (v) Liens relating to Taxes that are not amendyet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with U.S. generally accepted accounting principles;
(h) the Company shall not, modify and shall not permit any of its subsidiaries to, incur, assume or terminate pre-pay any Contract required indebtedness for borrowed money or enter into any agreement to be listed in Section 3.15 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 Disclosure Schedule or waiveany of its subsidiaries, release guarantee any debt securities of others, enter into any “keep well” or assign other agreement to maintain any material rights financial statement condition of another person or claims thereunderenter into any arrangement having the economic effect of any of the foregoing;
(pi) the Company shall not, and shall not permit any of its subsidiaries to, make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than loans or capital contributions between or among the Company and any of its wholly-owned subsidiaries and cash advances to the Company’s or any such subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice;
(j) the Company shall not, and shall not permit any of its subsidiaries to, assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except 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 subsidiariessubsidiaries (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, or materially amend, modify or supplement any Material Contract outside the ordinary course of business consistent with past practice (except as may be necessary for the Company to comply with its obligations hereunder and except as set forth in item #1 in Section 5.01(l) of the Company Disclosure Schedule), (ii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a Material Contract or otherwise) or (iii) amend, modify or supplement any agreement pursuant to which the Company or any of its subsidiaries leases any of the real property required to be disclosed in Section 3.25 of the Company Disclosure Schedule;
(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 or otherwise required in the ordinary course of business);
(n) the Company and its subsidiaries shall comply with their obligations under the Material Contracts as such obligations become due;
(o) except for customer contracts entered into in the ordinary course of business, the Company shall not, and shall not permit its subsidiaries to, renegotiate or enter into any new license, agreement or arrangement relating to any Intellectual Property, including for any current or new Solution Partner Software;
(p) the Company and its subsidiaries (i) shall continue in force 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;
(q) the Company shall not, and shall not take 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 as contemplated by this Agreement and other than employment of employees on an “at-will” basis and other modifications to employee compensation permitted by this Agreement;
(r) 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;
(s) 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 or any of its subsidiaries, except (i) as required by this Agreement, (ii) in connection with accelerating the vesting schedules of the Options to the extent required by the Stock Plans or the agreements pursuant to which such Options were granted and (iii) in connection with terminating the Options and the Stock Plans;
(t) 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 such real property and the use and operation thereof;
(u) the Company shall not, and shall not permit any of its subsidiaries to, enter into any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law;
(v) the Company shall not, and shall not permit any of its subsidiaries to, settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate the Company and its subsidiaries to make aggregate cash payments exceeding $50,000;
(w) the Company shall not, and shall not permit any of its subsidiaries to, change any of the material accounting policies, practices or procedures (including material tax accounting policies, practices and procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in U.S. generally accepted accounting principles;
(x) the Company shall not, and shall not permit any of its subsidiaries to, revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as required by U.S. generally accepted accounting principles;
(y) the Company shall not, and shall not permit any of its subsidiaries to, make or change any material tax election, make or change any material method of accounting with respect to Taxes except as may be required as a result of a change in applicable Law, settle or compromise any material Tax liability or file any material amended Tax Return;
(z) 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 (i) the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected on or reserved in the financial statements of the Company or incurred in the ordinary course of business and consistent with past practice or (ii) the payment of the Company’s Expenses (as defined herein), including the payment of the fees and expenses of the Special Committee and the costs, fees and expenses incurred by the Special Committee;
(aa) the Company shall not, and shall not permit any of its subsidiaries to, take, or agree or commit to take, any action that would, or would be is reasonably likely to, make any representation or warranty of the Company contained in this Agreement inaccurate at, or as of any time prior to, the Effective Time or result in any of the representations and warranties conditions to the Merger set forth in this Agreement Article 6 not being true and correct satisfied, or omit, or agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect (as if at any such representation time or warranty were made and in effect on the date to prevent any such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 condition from not being satisfied; and
(rbb) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Mapics Inc)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 5.01 of the Company Disclosure Schedule or as expressly contemplated consented to in writing by any other provision Parent, Company covenants and agrees that during the period from the date hereof to the Effective Time (or until termination of this Agreement, unless Agreement in accordance with Article 7):
(a) the Parent has consented business and operations of Company and AVP Subsidiaries shall be conducted only in writing thereto, the ordinary course of business and Company shall, and shall cause each AVP Subsidiary to, use its reasonable best efforts to preserve intact its current business organizations, keep available the services of its subsidiaries to:
(a) conduct current officers and employees and preserve its relationships with its material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with it and operations only in to preserve the ordinary course goodwill of business consistent with past practiceits respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliverwarrants, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or AVP Subsidiary, any other equity securities or voting security or equity or voting interest in the Company or any of its subsidiaries, any securities convertible into or exercisable into, or exchangeable for any rights, warrants or options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for issuances of Company Shares upon the exercise of Options or in substitution for, shares Warrants outstanding as of its stock, the date hereof or (ii) in solely 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) except as required under Section 2.1purchase, repurchase, redeem or otherwise acquire, or agree or commit to and shall ensure that no AVP Subsidiary shall purchase, repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of Company or debt any AVP Subsidiary (including, without limitation, securities exchangeable 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 subsidiariesAVP Subsidiary);
(gc) Company (i) shall retain, and shall not sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it directly or indirectly in any AVP Subsidiary or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any AVP Subsidiary, (ii) shall not amend or otherwise modify the terms change its Certificate of Incorporation or Bylaws, and shall ensure that no AVP Subsidiary shall amend its Certificate of Incorporation or Bylaws and (iii) shall not split, combine or reclassify any Company Stock Options shares of its capital stock, and shall ensure that no AVP Subsidiary shall split, combine or the Company Option Plan, the effect reclassify any shares of which shall be to make such terms more favorable to the holders thereof or persons eligible for participation thereinits capital stock;
(hd) Company shall not, and shall ensure that no AVP Subsidiary shall, declare, set aside or pay any dividends on (whether in cash, stock or other than regularly scheduled seniority property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by AVP Subsidiaries to Company or to other AVP Subsidiaries consistent with past practices);
(e) neither Company nor any AVP Subsidiary shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except increases in the ordinary course of business consistent with past practicepractice of less than ten percent (10%) of each such individual’s salary for non-officer employees, not increase the compensation payable increases and bonuses expressly contemplated by or to become payable to any directorsrequired under existing employment agreements, officers bonus plans and other agreements and arrangements listed or employees described in Section 5.01(e) of the Company or any Disclosure Schedule and except in connection with accelerating the vesting schedules of its subsidiariesthe Options and the Warrants and terminating the Options, or grant any severance or termination pay toWarrants and the Stock Plan, or (ii) enter into any employment new or severance materially amend or terminate any existing employment, consulting, severance, termination, change-of-control or indemnification agreement with any director current or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 former director, officer or employee of Company, (iii) except as set forth in Section 5.01(e) of the Company of any of its subsidiaries;
(i) not acquire Disclosure Schedule, as may be required to comply with applicable Law and as provided or agree to acquire otherwise contemplated in this Agreement (including, without limitation, Section 2.02), 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) except as may be required to comply with applicable Law and except as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02), pay any benefit not required by mergerany plan or arrangement as in effect as of the date hereof (including, consolidationwithout limitation, 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 accelerating the vesting schedules of the Options and the Warrants and terminating the Options, Warrants and the Stock Plan;
(f) Company shall not, and shall ensure that no AVP Subsidiary shall, acquire or agree to acquire, including, without limitation, by merging or consolidating with, or acquisition of stock, purchasing the assets or capital stock or other equity securities or interestsinterests of, or assets) by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof other than non-taxable transfers by 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)among AVP Subsidiaries;
(jg) not incurCompany shall not, assume or guarantee any indebtedness for borrowed money (including draw-downs on letters or lines of credit) or issue or sell any notesand shall ensure that no AVP Subsidiary shall, 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) pursuant to existing contracts and commitments described in Section 5.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or any assets (or immaterial portions of its subsidiaries;
(lproperties or assets, including those described in Section 5.01(g) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
Disclosure Schedule), (miii) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice, not amend, modify (iv) Permitted Liens and (v) non-taxable transfers by or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunderamong AVP Subsidiaries;
(ph) Company shall not, and shall ensure that no AVP Subsidiary shall, issue any letter of credit other than pursuant to the issuance of letters of credit in the ordinary course of business consistent with past practices of Company and AVP Subsidiaries in an amount not to exceed $150,000 in the aggregate, incur, assume or pre-pay any Indebtedness, enter into any agreement to incur, assume or pre-pay any Indebtedness, guarantee, or agree to guarantee, any such Indebtedness or obligation of another person, 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 Company or any AVP Subsidiary, guarantee any debt securities of others, enter into any “keep” well or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing;
(i) Company shall not, and shall ensure that no AVP Subsidiary shall, make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity, other than (i) loans or advances in the ordinary course of business pursuant to Material Contracts in an amount not to exceed $50,000 in the aggregate, (ii) such loans between or among Company and any AVP Subsidiary and (iii) cash advances to Company’s or any such AVP Subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice;
(j) Company shall not, and shall ensure that no AVP Subsidiary shall, assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the obligations of AVP Subsidiaries permitted under this Agreement, other than in the ordinary course of business consistent with past practice;
(k) neither Company nor any AVP Subsidiary 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 AVP Subsidiary (other than any transaction specifically contemplated by this Agreement);
(l) Company shall not, and shall ensure that no AVP Subsidiary shall, (i) enter into, terminate or materially amend, modify or supplement any Contract outside the ordinary course of business consistent with past practice (except as may be necessary for Company to comply with its obligations hereunder), (ii) enter into, terminate or materially amend, modify or supplement, any Lease or Material Contract, other than in the ordinary course of business consistent with past practice, or (iii) waive, release, grant, assign or transfer any of its subsidiariesmaterial rights or claims (whether such rights or claims arise under a Contract or otherwise);
(m) Company shall not, and shall ensure that no AVP Subsidiary shall, authorize or make any capital expenditures (other than pursuant to commitments prior to the date hereof or other planned capital expenditures in the ordinary course of business consistent with past practices disclosed in Section 5.01(m) of the Company Disclosure Schedule by category) or make any commitments with respect to capital expenditures or other planned capital expenditures in the ordinary course of business consistent with past practices in excess of $50,000 in the aggregate;
(n) Company and AVP Subsidiaries (i) shall continue in force insurance with insurance companies who are experienced in underwriting insurance for businesses similar to Company’s business and adequately covering risks of such types and in such amounts as are consistent with Company’s past practices and (ii) shall use reasonable best efforts not permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated;
(o) Company shall not, and shall ensure that no AVP Subsidiary shall, establish or acquire (i) any Subsidiary other than wholly-owned Subsidiaries or (ii) Subsidiaries organized outside of the United States and its territorial possessions;
(p) Company shall not, and shall ensure that no AVP Subsidiary shall, amend, modify or waive any term of any outstanding Options, Warrants or other securities of Company or any AVP Subsidiary, except (i) as required by this Agreement, or (ii) in connection with terminating the Options and the Stock Plan;
(q) not take any action that wouldCompany shall, or would be reasonably likely and shall cause each AVP Subsidiary to, result (i) maintain any real property in which any of Company and AVP Subsidiaries have any ownership or leasehold interest (including, without limitation, the furniture, fixtures, equipment and systems therein) in its current condition in all material respects, subject to reasonable wear and tear and subject to any casualty or condemnation and Permitted Liens, subject to the expiration of real property in accordance with their terms or (ii) pay, prior to the imposition of any Lien or material penalty all taxes, water and sewage rents, assessments and insurance premiums affecting such real property or contest them in good faith;
(r) Company shall not, and shall ensure that no AVP Subsidiary shall, enter into, terminate or materially amend any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law;
(s) Company shall not, and shall ensure that no AVP Subsidiary shall, conduct any plant closing or layoff that could implicate the WARN Act;
(t) Company shall not, and shall ensure that no AVP Subsidiary shall, enter into any material settlement, conciliation or similar agreement;
(u) Company shall not, and shall ensure that no AVP Subsidiary shall, settle or compromise any pending or threatened suit, action, claim or litigation, except with respect to the settlement or compromise of any such matter which does not involve equitable or injunctive relief and does not obligate Company and AVP Subsidiaries to make aggregate cash payments exceeding $50,000 individually or $100,000 in the aggregate;
(v) except as set forth in Section 5.01(v) of the Company Disclosure Schedule, Company shall not, and shall ensure that no AVP Subsidiary shall, change any of the representations accounting policies, practices or procedures (including tax accounting policies, practices and warranties set forth procedures) used by Company and AVP Subsidiaries as of the date hereof, except as may be required as a result of a change in this Agreement not being true applicable Law or in U.S. generally accepted accounting principles;
(w) Company shall not, and correct shall ensure that no AVP Subsidiary shall, revalue in any material respect any of its assets (including, without limitation, writing down or writing off any notes or accounts receivable in any material manner), except as if such representation required by U.S. generally accepted accounting principles;
(x) Company shall not, and shall ensure that no AVP Subsidiary shall, pay, discharge or warranty were made satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (i) the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of Liabilities reflected on or reserved in effect on the date such action would have been takenfinancial statements of Company or incurred in the ordinary course of business and consistent with past practice, notwithstanding any other provisions hereof(ii) the payment of Company’s Expenses, including the payment of the fees and Expenses of Special Committee and the costs, fees and Expenses incurred by Special Committee or (except as to any action permitted iii) the payment of claims under Section 5.4) any of the conditions set forth in Article 7 Benefit Plans;
(y) Company shall not, and shall ensure that no AVP Subsidiary shall, make or 8 not being satisfiedchange any material tax election or change an annual accounting period with respect to Taxes, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle or compromise any Tax claim, assessment or liability relating to Company or any AVP Subsidiary, or surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Company or any AVP Subsidiary, or take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax; and
(rz) except as to subsections (a)Company shall not, (b) and (c) of Section 5.1shall not permit any AVP Subsidiary to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Avp Inc)
Interim Operations. From the date of Except as otherwise expressly contemplated by this ------------------ Agreement until the Closing TimeAgreement, except as required by applicable Law, as set forth in Section 5.1 of the Company Disclosure Schedule Schedule, or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented agreed to in writing theretoby Purchaser (which agreement shall not be unreasonably withheld, delayed or conditioned), the Company shallCompany, the Stockholder, and shall cause each of its subsidiaries tothe Asset Sellers covenant and agree that, prior to the Closing:
(a) conduct its business and operations only The Business shall be conducted in the ordinary course of business consistent with past practice;
(b) The Company and the Asset Sellers shall use commercially reasonable efforts to preserve keep intact the business, organization, goodwill, rights, licensesproperties and assets, permits and franchises vendor, supplier, customer, franchisee and other business relationships of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with themBusiness;
(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;
The Company shall not (di) not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of capital stock or other equity interests of the Company (including securities convertible into, or rights or options to acquire, capital stock or other equity interests of the Company), (ii) repurchase, redeem or otherwise acquire any class or series shares of capital stock or other equity interests of the Company (including securities convertible into, or rights or options to acquire, capital stock or other equity interests of the Company), or (iii) amend or otherwise change its certificate of incorporation or bylaws;
(d) The Company shall not acquire, including by merging or consolidating with, or purchasing the assets or capital stock or other equity interests of, or in any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or make any capital expenditures or commitments in an amount in excess of its subsidiaries or any other equity or voting security or equity or voting interest $25,000 in the Company or any of its subsidiariesaggregate, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of pursuant to existing agreements;
(e) The Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect)shall not hire any employees;
(f) The Company shall not sell, lease, license, subject to any Lien (other than a Permitted Lien) or otherwise encumber or dispose of (including through any sale-leaseback or similar transaction) any of its properties or assets, and no Asset Seller shall take any such action with respect to any of the Purchased Assets, other than (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu ofpursuant to existing agreements, or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Interim Operations. From The Company covenants and agrees as to itself and its Subsidiaries that, after the date of this ------------------ Agreement until and prior to the Closing TimeEffective Time (unless Parent shall otherwise consent in writing, which consent will not unreasonably be withheld or delayed, and except as otherwise expressly set forth in or contemplated by this Agreement or Section 5.1 7.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:Schedule):
(a) conduct the business of it and its business and operations only Subsidiaries will be conducted in the ordinary and usual course of and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business consistent organization intact and maintain its existing relations and goodwill with past practicecustomers, suppliers, distributors, strategic partners, creditors, lessors, employees and business associates;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
it shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grantpledge, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge dispose of or encumber any shares of any class or series of capital stock of the Company or owned by it in any of its subsidiaries Subsidiaries, (ii) amend its certificate of incorporation or any other equity by-laws (or voting security or equity or voting interest in the Company or any of its subsidiariesequivalent governing instruments), any 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 such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (iiii) split, combine or reclassify any its outstanding 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 capital stock, (iiiv) in solely the case of the Company, declare, set aside or pay any dividends ondividend payable in cash, stock or make other distributions property in respect of, of any of the Company's stockcapital stock other than dividends from its direct or indirect wholly-owned Subsidiaries, or (iiiv) except as required under Section 2.1, repurchasepurchase, redeem or otherwise acquire, except for the acquisition of shares of Company Common Stock from holders of Company Stock Options in full or agree partial payment of the exercise price payable by such holder upon exercise of Company Stock Options to the extent required or commit permitted under the terms of such Company Stock Options, or permit any of its Subsidiaries to repurchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity any securities convertible into or debt securities exchangeable or equity interests of the Company or exercisable for any shares of its subsidiariescapital stock;
(g) not amend or otherwise modify the terms of any Company Stock Options or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) From the date of this ------------------ Agreement until the Closing Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:
(ai) conduct its business and operations only in the ordinary course of business consistent with past practice;
(bii) use its reasonable efforts to preserve intact the business, organizationbusiness organizations, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries subsidiaries, and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
(ciii) use its commercially reasonable efforts to keep in full force and effect adequate insurance coverage coverages and maintain and keep its properties and assets in good repair, working order and condition, normal wear and tear excepted;
(div) not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(ev) except as required under Section 2.1, 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 Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares Company Common Stock upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Incentive Plan as currently in effect);
(f) not (i) split, combine or 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) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Red Lion California LTD Partnership)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 SECTION 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with ARTICLE 8 hereof):
(a) conduct its the business and operations of the Company and its Subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its Subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or Subsidiaries, any other equity securities or voting security or equity or voting interest in the Company or any of its subsidiaries, any securities convertible into or exercisable into, or exchangeable for any rights, warrants or options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for issuances of Common Shares upon the exercise of Options outstanding as of the date hereof or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its Subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity or debt securities or equity interests of the Company or any of its subsidiariesSubsidiaries (including, without limitation, securities exchangeable 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);
(gc) 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 modify the terms change its charter, articles of incorporation or bylaws or permit any Company Stock Options of its Subsidiaries to amend its articles of incorporation, bylaws or the Company Option Planequivalent organizational documents or (iii) split, the effect combine or reclassify any shares of which its capital stock, and shall be not permit any of its Subsidiaries to make such terms more favorable to the holders thereof split, combine or persons eligible for participation thereinreclassify any shares of its capital stock;
(hd) the Company shall not, and shall not permit any of its Subsidiaries to, declare, set aside or pay any dividends on (whether in cash, stock or other than regularly scheduled seniority property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of the Company consistent with past practices);
(e) neither the Company nor any of its Subsidiaries shall (i) grant or agree to any increase in any manner the compensation or fringe benefits of, or pay any bonus to, any current or former director, officer or employee except increases in the ordinary course of business consistent with past practicepractice of less than 10% of each such individual's salary for non-officer employees, not increase the compensation payable increases and bonuses expressly contemplated by or to become payable to any directorsrequired under existing employment agreements, officers bonus plans and other agreements and arrangements listed or employees described in SECTION 6.01(E) of the Company or any Disclosure Schedule and except in connection with accelerating the vesting schedules of its subsidiariesthe Options and terminating the Options and the Stock Plans, or grant any severance or termination pay to, or (ii) enter into any employment new or severance materially amend any existing employment, consulting, severance, termination, change-of-control or indemnification agreement with any director current or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 former director, officer or employee of the Company, (iii) except as set forth in SECTION 6.01(E) of the Company of any of its subsidiaries;
(i) not acquire Disclosure Schedule, as may be required to comply with applicable Law and as provided or agree to acquire otherwise contemplated in this Agreement (including, without limitation, by mergerSECTION 3.02 hereof), consolidation, or acquisition of stock, equity securities or interests, or assets) become obligated under 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 Benefit Plan that was not in existence on the ordinary course of business);
(j) not incur, assume date hereof 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract 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) except as may be required to be listed in Section 3.15 of the Company Disclosure Schedule comply with applicable Law and except as provided or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth otherwise contemplated in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been takenincluding, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a)without limitation, (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.SECTION 40
Appears in 1 contract
Sources: Acquisition Agreement (Prentice Capital Management, LP)
Interim Operations. From The Company covenants and agrees that, after the date of this ------------------ Agreement until hereof and prior to the Closing Time, Effective Time (unless Parent shall otherwise approve in writing and except as set forth in Section 5.1 6.01 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, unless the Parent has consented in writing thereto, the Company shall, and shall cause each of its subsidiaries to:):
(a) conduct its the business and operations only of the Company shall be conducted in the ordinary and usual course of business and, to the extent consistent therewith, the Company shall use its commercially reasonable efforts, consistent with past practicethe limitations of this Article VI, 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) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grantpledge, deliver, pledge or encumber or agree or commit to issue, sell, grant, deliver, pledge dispose of or encumber any shares of any class or series of capital stock of owned by it; (ii) amend the Company Charter or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any 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 such shares, securities or interests Bylaws; (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (iiii) split, combine or reclassify any its outstanding 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 capital stock, ; (iiiv) in solely the case of the Company, declare, set aside or pay any dividends ondividend payable in cash, stock or make other distributions property in respect of, of any of the Company's capital stock, ; or (iiiv) except as required under Section 2.1, repurchasepurchase, redeem or otherwise acquire, except for the acquisition of Company Common Shares from holders of Company Stock Options or agree warrants to purchase Company Common Shares in full or commit partial payment of the exercise price payable by such holder upon exercise of Company Stock Options or warrants to repurchasepurchase Company Common Shares, redeem to purchase or otherwise acquire, any shares of its capital stock or other equity any securities convertible into or debt securities exchangeable or equity interests of the Company or exercisable for any shares of its subsidiariescapital stock;
(gc) the Company shall not amend (i) issue, sell, pledge, dispose of or otherwise modify the terms encumber any shares of its capital stock of any class or any Voting Debt or any other property or assets, or issue, sell, pledge, dispose of or encumber 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 or any other property or assets (other than Company Common Shares issuable pursuant to options outstanding on the date hereof under the Company Stock Options Plans, pursuant to warrants to purchase Company Common Shares outstanding on the date hereof, and upon conversion of the Series B Preferred Shares or the Company Option Planunder this Agreement); (ii) transfer, the effect of which shall be lease, license, guarantee, sell, mortgage, pledge, dispose of, abandon, cancel, surrender or allow to make such terms more favorable to the holders thereof lapse or persons eligible for participation therein;
(h) expire or encumber any material property or material assets or business other than regularly scheduled seniority increases licenses of Company Products entered into in the ordinary course of business consistent with past practice, not increase the compensation payable or to become payable to any directors, officers or employees of business;
(d) the Company shall not restructure, recapitalize, reorganize or any completely or partially liquidate or adopt a plan of its subsidiaries, complete or grant any severance partial liquidation or termination pay to, or otherwise enter into any employment agreement or severance agreement with arrangement imposing material changes or restrictions on the operation of its assets, product lines or businesses, or its interests therein, or adopt resolutions providing for or authorizing any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of the Company of any of its subsidiariesforegoing;
(e) the Company shall not acquire (i) not acquire by merging or agree to acquire (including, without limitation, by merger, consolidationconsolidating with, or acquisition by purchasing all or a substantial portion of stock, equity securities the assets of or interestsany stock of, or assets) by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof thereof, or otherwise acquire (ii) any material assets or agree to acquire any assets businesses, except purchases of any other person outside inventory in the ordinary course of business consistent with past practice business;
(f) except for the Rights Agreement, the Company shall not adopt or implement any stockholder rights plan, “poison pill” anti-takeover plan or other similar plan, device or arrangement that, in each case, is applicable to Parent or any interest of its Affiliates, nor shall it (i) exempt any person (other than Parent, MergerSub and their respective affiliates) from the provisions of Section 203 of the DGCL or any similar takeover laws, (ii) exempt any persons (other than Parent, MergerSub and their respective affiliates) from the provisions of any Takeover Statute or otherwise cause such restrictions not to apply, or (iii) amend or waive the Rights Agreement or redeem the Company Rights or take any action to render the Rights Plan or the Company Rights inapplicable to any party other than Parent or MergerSub, or agree to do any of the foregoing, in each case, unless such actions are taken concurrently with a termination by the Company of this Agreement, as in accordance with Article IX hereof;
(g) the Company shall not (i) incur any real properties indebtedness for borrowed money or guarantee any such indebtedness of another Person (whether other than pursuant to equipment lease borrowings or not existing lines of credit in the ordinary course of business);
, (jii) not incurissue, assume sell or guarantee amend any indebtedness for borrowed money (including draw-downs on letters debt securities or lines of credit) or issue or sell any notes, bonds, debentures, debt instruments, evidences of indebtedness warrants or other rights to acquire any debt securities of the Company Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of its subsidiaries another Person or enter into any options, warrants or rights to purchase or acquire arrangement having the economic effect of any of the sameforegoing, except for (iiii) renewals make any loans, advances (other than routine travel advances to employees of existing bonds and letters of credit the Company in the ordinary course of business business, not to exceed exceeding $100,000 2,000 for any individual employee for any single trip and not exceeding $25,000 in the aggregate; and ) or capital contributions to, or investment in, any other Person, other than the Company, or (iiiv) advances, loans or other indebtedness than in the ordinary course of business consistent with past practice business, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company against fluctuations in an aggregate amount not to exceed $100,000commodities prices or exchange rates;
(kh) 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 or any of its subsidiaries;
(l) shall not authorize or make any capital expenditures (including by lease) or other expenditures with respect to property, plant or equipment in excess of $100,000 20,000 in the aggregate aggregate, other than as set forth in the Company’s budget for capital expenditures previously made available to Parent or the Company and all specific capital expenditures disclosed in Section 6.01(h) of its subsidiariesthe Disclosure Schedule;
(mi) the Company shall not make any material change changes in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except insofar as may be have been required by GAAPa change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(nj) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) the Company shall not, except in the ordinary course of business consistent with past practice, not enter into, renew, modify, amend, modify or terminate any Contract required to be listed in Section 3.15 of terminate, waive, delay the Company Disclosure Schedule or waiveexercise of, release or assign any material rights or claims under, any Company Material Contract or 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 is bound by or subject;
(k) the Company shall not, except as required to comply with applicable Law (as in effect on the date hereof or hereafter) 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, bonus, retirement, retention, welfare, incentive or similar agreement, arrangement or benefit plan for the benefit or welfare of any current, prospective or former, director, officer, employee or consultant or any collective bargaining agreement (except for terminations of employment with non-executive employees for performance in the ordinary course of business), (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 remove existing restrictions in any benefit plans or agreements or awards made thereunder; (vi) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or (vii) create any bonus plan or grant any bonuses in connection with the transaction contemplated by this Agreement.
(l) the Company shall not make any written or oral communications to the employees of the Company 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) the Company shall not initiate, settle or compromise any material litigation, claim, grievance, charge or proceeding (other than as set forth in Section 6.01(m) of the Disclosure Schedule or in connection with the enforcement of the Company’s rights under this Agreement);
(n) the Company shall not make or rescind any material Tax election, amend in any material request any Tax Return, change an accounting period, adopt or change an accounting method, settle or otherwise finally resolve any material Tax controversy, 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 and provided that such action would not have the effect of increasing the Tax liability of the Company for any period ending as of Closing Date;
(o) the Company shall not enter into any Customer Contract, end user, partnership, maintenance, professional services or reseller agreement or arrangement other than pursuant to a Company Standard Form Contract and it shall not enter into any Customer Contract with a discount exceeding the discount set forth in Schedule 6.01(o) of the Disclosure Schedule.
(p) 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;
(q) shall not take any action that would, or would reasonably be reasonably likely to, expected to result in any of the representations and warranties conditions to the Offer set forth in this Agreement not being true and correct in any material respect (as if such representation Annex I or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions to the Merger set forth in Article 7 or 8 VIII not being satisfiedsatisfied or that would reasonably be expected to materially delay the consummation of, or materially impair the ability of the Company to consummate, the Offer, the Merger, the Top-Up Option or any other transaction contemplated by this Agreement in accordance with the terms hereof; andprovided, however that the foregoing shall not prohibit the Company from taking any action permitted by Section 7.04 of this Agreement.
(rq) except the Company shall not authorize any of, or commit, resolve or agree, in writing or otherwise, to take, any of the foregoing actions. In connection with the continued operation of the Company, the Company will confer in good faith on a regular and frequent basis with one or more representatives of Parent, as requested by such representatives, designated to subsections (a), the Company regarding operational matters and the general status of ongoing operations 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 which could reasonably be expected to result in the failure of a condition set forth in paragraph (b) and or (c) of Section 5.1, Annex I. The Company acknowledges that Parent does not agree or commit in writing or otherwise to do waive any rights it may have under this Agreement as a result of the foregoingsuch consultation.
Appears in 1 contract
Sources: Merger Agreement (Arkona Inc)
Interim Operations. From the date of Except as otherwise contemplated by this ------------------ Agreement until the Closing Time, except or as set forth in Section 5.1 SECTION 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless the Parent has consented to in writing theretoby Parent, the Company shall, covenants and shall cause each agrees that during the period from the date of its subsidiaries to:this Agreement to the Effective Time (or until termination of this Agreement in accordance with ARTICLE 8 hereof):
(a) conduct its the business and operations of the Company and its Subsidiaries shall be conducted only in the ordinary course of business consistent and the Company and its Subsidiaries shall use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with past practicetheir material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
shall not (ci) 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, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, not authorize for issuance, issue, sell, grant, deliver, pledge or encumber sell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, grantcommitments, deliversubscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of any class its capital stock or series of the capital stock of the Company or any of its subsidiaries or Subsidiaries, any other equity securities or voting security or equity or voting interest in the Company or any of its subsidiaries, any securities convertible into or exercisable into, or exchangeable for any rights, warrants or options to acquire, any such shares, securities or interests, or any options, warrants, calls, commitments, subscriptions or rights to purchase or acquire any such shares, convertible securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or reclassify any shares of its stock or issue or authorize or propose the issuance of any other securities in respect ofor equity equivalents (including without limitation stock appreciation rights or phantom interests), in lieu of, except for issuances of Common Shares upon the exercise of Options outstanding as of the date hereof or in substitution for, shares of its stock, (ii) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit permit any of its Subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity or debt securities or equity interests of the Company or any of its subsidiaries;
Subsidiaries (g) not amend including, without limitation, securities exchangeable for, or otherwise modify the terms options, warrants, calls, commitments or rights of any Company Stock Options kind to acquire, capital stock or the Company Option Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees equity interests of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 businessSubsidiaries);
(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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) 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 or any of its subsidiaries;
(l) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business consistent with past practice, not amend, modify or terminate any Contract required to be listed in Section 3.15 of the Company Disclosure Schedule or waive, release or assign any material rights or claims thereunder;
(p) 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;
(q) not take any action that would, or would be reasonably likely to, result in any of the representations and warranties set forth in this Agreement not being true and correct in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of the conditions set forth in Article 7 or 8 not being satisfied; and
(r) except as to subsections (a), (b) and (c) of Section 5.1, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract
Sources: Acquisition Agreement (Prentice Capital Management, LP)
Interim Operations. From Except as expressly contemplated by this Agreement or the Company Disclosure Schedule or as consented to in writing by Parent, which consent, solely, with respect to clauses (e)(iv), (l), (m), (u) or, with respect to the foregoing, clause (z) below, shall not be unreasonably withheld) 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 Closing Timebusiness and operations of the Company and its subsidiaries shall be conducted only in the ordinary and usual course of business and the Company and its subsidiaries shall use their commercially reasonable efforts to preserve intact their current business organizations and preserve substantially intact the goodwill of those having business relationships with it;
(b) the Company shall 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 encumber any shares of its capital stock or the capital stock of any of its 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 (including without limitation stock appreciation rights or phantom interests), except for issuances of Common Shares upon the exercise of Options outstanding prior to the date hereof or (ii) repurchase, redeem or otherwise acquire, or permit any of its subsidiaries to repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests of the Company or any of its subsidiaries (including, without limitation, securities exchangeable 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 articles of incorporation or bylaws or permit any of its subsidiaries to amend its articles of incorporation, bylaws or equivalent organizational documents or (iii) split, combine or reclassify any shares of its capital stock, and shall not permit any of its subsidiaries to split, combine or reclassify any 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 dividends on (whether in cash, stock or property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned subsidiaries to the Company with respect to capital stock);
(e) except as set forth in Section 5.1 5.01(e) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries shall (i) grant or agree to any increase in any manner 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 and periodic increases consistent with past practice for employees other than officers and directors of the Company, (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, (iii) except as expressly contemplated by any other provision of may be required to comply with applicable law and except as provided in this Agreement, unless become obligated under any Benefit Plan that was not in existence on the Parent has consented date hereof or materially 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 writing theretoexistence on the date hereof, (iv) hire any employee (A) except the replacement of any current employee of the Company or any of its subsidiaries whose employment with the Company or any of its subsidiaries is terminated for any reason (with such replacement employee receiving substantially similar compensation and benefits as such terminated employee) or (B) new employees having anticipated annual compensation (including bonuses) not exceeding $100,000 individually or $500,000 in the aggregate, or (v) except as may be required to comply with applicable law and except as provided in this Agreement, 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, except as otherwise contemplated by this Agreement);
(f) the Company shallshall not, and shall cause each not permit any of its subsidiaries to:
(a) conduct its , 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 and operations only or any corporation, partnership, association or other business organization or division thereof, other than purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(bg) use reasonable efforts to preserve intact the business, organization, goodwill, rights, licenses, permits and franchises of the Company shall not, and its subsidiaries and maintain their existing relationships with customers, suppliers and other persons having business dealings with them;
(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) shall not amend or modify its respective charter or certificate of incorporation, by-laws, partnership agreement or other charter or organization documents;
(e) except as required under Section 2.1, 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 permit any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, any 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 such shares, securities or interests (other than issuances of Shares upon exercise of Company Stock Options granted prior to the date of this Agreement to directors, officers, employees and consultants of the Company in accordance with the Company Stock Plan as currently in effect);
(f) not (i) split, combine or 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) in solely 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) except as required under Section 2.1, repurchase, redeem or otherwise acquire, or agree or commit to 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 Plan, the effect of which shall 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 practice, not increase the compensation payable or to become payable to any directors, officers or employees of the Company or any of its subsidiaries, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of the Company or any of its subsidiaries, or establish, adopt, enter into or 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 of 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 (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $100,000 in the aggregate; and (ii) advances, loans or other indebtedness in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000;
(k) not sell, lease, license, mortgage or otherwise 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 material of its properties or assets other than (i) pursuant to existing contracts and commitments described in Section 5.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or any assets (or immaterial portions of its subsidiaries;
properties or assets) and (liii) not authorize or make any capital expenditures (including by lease) in excess of $100,000 in the aggregate for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, except as may be required by GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except inventory in the ordinary course of business consistent with past practice;
(h) the Company shall not, and shall not amendpermit any of its subsidiaries to, modify incur, assume or terminate pre-pay any Contract required indebtedness for borrowed money or enter into any agreement to be listed in Section 3.15 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 Disclosure Schedule or waiveany of its subsidiaries, release guarantee any debt securities of others, enter into any “keep well” or assign other agreement to maintain any material rights financial statement condition of another person or claims thereunderenter into any arrangement having the economic effect of any of the foregoing, other than the incurrence of indebtedness under the Company’s existing revolving credit facility up to the limits of such facility as of the date hereof.
(i) the Company shall not, and shall not permit any of its subsidiaries to, make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any person or entity (other than loans between or among the Company and any of its wholly-owned subsidiaries and except for cash advances to employees for reimbursable travel and other reasonable business expenses in the ordinary course of business);
(pj) the Company shall not, and shall not permit any of its subsidiaries to, assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except 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 subsidiariessubsidiaries (other than any transaction specifically contemplated by this Agreement or set forth in Section 5.01(k) of the Company Disclosure Schedule);
(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 practice (except as may be necessary for the Company to comply with its obligations hereunder or as set forth in Section 5.01(l) of the Company Disclosure Schedule) or (ii) waive, release, grant, assign or transfer any of its material rights or claims (whether such rights or claims arise under a Material Contract, License Agreement 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 $750,000 in the aggregate for the Company and its subsidiaries taken as a whole;
(n) the Company and its subsidiaries shall comply in all material respects with their 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 its existing or other reputable 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;
(p) the Company shall not, and shall not permit any of its subsidiaries to, enter into, amend, modify or supplement any material 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 take permit any action that would, or would be reasonably likely of its subsidiaries to, result 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 or 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 ownership or 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 material 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 such real property and the use and operation thereof;
(t) the Company shall not, and shall not permit any of its subsidiaries to, enter into any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law or as set forth in Section 5.01(t) of the Company Disclosure Schedule;
(u) the Company shall not, and shall not permit any of its subsidiaries to, settle or compromise any pending or threatened suit, action, claim or litigation (except in the ordinary course of business and with prior written notice to Parent);
(v) the Company shall not, and shall not permit any of its subsidiaries to, change any of the representations accounting policies, practices or procedures (including tax accounting policies, practices and warranties set forth procedures) used by the Company and its subsidiaries as of the date hereof, except as may be required as a result of a change in this Agreement applicable law or in United States generally accepted accounting principles;
(w) the Company shall not, and shall not being true and correct permit any of its subsidiaries to, revalue in any material respect (as if such representation or warranty were made and in effect on the date such action would have been taken, notwithstanding any other provisions hereof) or (except as to any action permitted under Section 5.4) any of its assets, including, without limitation, writing down the conditions set forth value of inventory in Article 7 any material manner or 8 the write-off of notes or accounts receivable in any material manner;
(x) the Company shall not, and shall not being satisfiedpermit 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 in the ordinary course of business and consistent with past practice 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 practice; and
(rz) except as to subsections (a)the Company shall not, (b) and (c) shall not permit any of Section 5.1its subsidiaries to, not agree or commit in writing or otherwise to do any of the foregoing.
Appears in 1 contract