Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, (i) conduct its operations according to its ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement. (b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate of incorporation or by-laws; (ii) issue, sell or pledge any
Appears in 2 contracts
Sources: Merger Agreement (M Acquisition Corp), Merger Agreement (Marcam Solutions Inc)
Interim Operations. (a) From and after the date of this Agreement until to the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing theretothereto and except as set forth in the Disclosure Letter, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its operations according to its usual, regular and ordinary course of business consistent with past practice; (ii) use its commercially reasonable best efforts to preserve intact its their business organizations organizations, maintain in effect all existing material qualifications, licenses, permits, approvals and goodwillother authorizations referred to in Sections 6.1 and 6.12, keep available the services of its their officers and employees, key employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) promptly upon the discovery thereof, promptly thereof notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement; and (v) maintain its books of account and records in its usual, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof regular and monthly financial statements for the Company and ordinary manner, consistent with its Subsidiaries for and as of each month end subsequent to the date of this Agreementpast practices.
(b) From and after the date of this Agreement until to the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing theretothereto and except as set forth in the Disclosure Letter, the Company shall not, and shall not permit any of its Subsidiaries to, (i) amend its certificate of incorporation or by-lawsbylaws or comparable governing instruments; (ii) issue, sell sell, pledge or register for issuance or sale any shares of capital stock or other ownership interest in the Company (other than issuances 27 32 of Common Stock in respect of any exercise of Options and warrants outstanding on the date hereof or purchases of Common Stock pursuant to the ESPP) or any of the Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, or ownership interest, or convertible or exchangeable securities or accelerate any right to convert or exchange or acquire any securities of the Company or any of its Subsidiaries for any such shares or ownership interest; (iii) effect any stock split or conversion of any of its capital stock or otherwise change its capitalization as it exists on the date hereof, other than as set forth in this Agreement; (iv) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of any of its Subsidiaries, other than as set forth in this Agreement; (v) sell, lease or otherwise dispose of any of its assets or properties (including capital stock of any of its Subsidiaries), mortgage, pledge anyor impose a lien or other encumbrance on any of its material assets or property (including capital stock of any of its Subsidiaries), except in the ordinary course of business; (vi) acquire by merger, purchase or any other manner, any business or entity or otherwise acquire any assets that are material to the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital expenditures in the ordinary course of business consistent with past practice; (vii) incur or assume any long-term or short-term debt, except for working capital purposes in the ordinary course of business under the Company's existing credit facilities and capital expenditures made in accordance with the Company's previously adopted capital budget, copies of which have been provided to Purchaser; (viii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned Subsidiaries of the Company; (ix) make or forgive any loans, advances or capital contributions to, or investments in, any other person; (x) enter into any new employment, severance, consulting or salary continuation agreements with any newly hired employees other than in the ordinary course of business or enter into any of the foregoing with any existing officers, directors or employees or grant any increases in compensation or benefits to any officers, directors or employees except for regularly scheduled employee raises in the ordinary course of business consistent with the Company's past practices or raises that, in the case of executive officers, have been approved by the compensation committee of the Board of Directors prior to the date hereof and disclosed to Purchaser prior to the date of this Agreement; (xi) adopt or amend in any material respect (including any increase in the payment to or benefits under) or terminate any employee benefit plan or arrangement; (xii) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payee to be canceled or terminated; (xiii) except as may be required by law or generally accepted accounting principles, change any material accounting principles or practices used by the Company or its Subsidiaries; (xiv) take any action to cause the Common Stock to cease to be traded on the Nasdaq National Market prior to the completion of the Offer or the Merger; (xv) enter into a Material Agreement, except as required or permitted by subsection (vii) or (xvi) of this Section 8.1(b) or Section 8.10(b) and except for agreements relating to the purchase or sale of the Company's products (including, without limitation, supply, purchase and shipping contracts) to be performed within 90 days; (xvi) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, 28 33 credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (xvii) fail to operate, maintain, repair or otherwise preserve its material assets and properties consistent with past practice; (xviii) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes except where such failure to comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (xix) make any tax election or settle or compromise any federal, state, local or foreign income tax liability; (xx) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $250,000; or (xxi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Telelogic Ab)
Interim Operations. Except as set forth in the IP Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior consent of UCC (a) From which consent shall not be unreasonably withheld or delayed), from the date of this Agreement hereof until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall, IP shall and shall cause its each of the IP Subsidiaries to, conduct their business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to (i) conduct preserve intact its operations according to its ordinary course of present business consistent with past practice; organization, (ii) use its reasonable best efforts maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for IP or any IP Subsidiary to preserve intact carry on its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory (iii) preserve existing relationships with those persons its material customers, lenders, suppliers and others having material business relationships with them; (iii) upon it. Without limiting the discovery thereof, promptly notify Purchaser generality of the existence of any breach of any representation or warranty contained herein (orforegoing, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of except as otherwise expressly contemplated by this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after from the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 without the prior consent of the Company Disclosure LetterUCC (which consent shall not be unreasonably withheld or delayed), unless Purchaser has consented in writing thereto, the Company IP shall not, and not shall not it permit its Subsidiaries any IP Subsidiary to:
(a) make any amendment to IP's restated certificate of incorporation that changes any material term or provision of the IP Common Shares;
(b) make any material changes to MergerSub's certificate of incorporation;
(c) engage in any material repurchase at a premium, recapitalization, restructuring or reorganization with respect to IP's capital stock, including, without limitation, by way of any extraordinary dividend on, or other extraordinary distributions with respect to, IP's capital stock;
(d) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or any business or division thereof, or otherwise acquire any assets, unless IP concludes in good faith that such acquisition or the entering into of a definitive agreement relating to or the consummation of such transaction would not (i) amend its certificate impose any material delay in the obtaining of, or significantly increase the risk of incorporation not obtaining, any authorizations, consents, orders, declarations or by-laws; approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (ii) issuesignificantly increase the risk of any Governmental Entity entering an order prohibiting the consummation of the Merger or (iii) significantly increase the risk of not being able to remove any such order on appeal or otherwise; or
(e) agree, sell resolve or pledge anyotherwise commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. (a) From the date of this ------------------ Agreement until the Effective Time, except as required by Law or as set forth in Section 6.2 5.2(a) of the Company Disclosure LetterSchedule, unless Purchaser Parent ------------------------------------------------- has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, :
(i) conduct its operations according to its ordinary course of business consistent with past practicepractice and in compliance in all material respects with all applicable Laws; (ii) use its commercially reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers officers, employees and employeesconsultants, and maintain satisfactory relationships with those persons Persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser Parent of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Company Material Adverse EffectEffect or materiality, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Company Material Adverse EffectEffect or materiality, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser Parent true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof ; and monthly financial statements for the Company and (v) pay its Subsidiaries for and as of each month end subsequent to the date of this AgreementTaxes when due.
(b) From and after the date of this Agreement until the Effective Time, except as may be required by Law or any pre-existing contractual obligation, and except as set forth in Section 6.2 5.2(b) of the --------------------- Company Disclosure LetterSchedule, unless Purchaser Parent has consented in writing theretothereto --------------------------- (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall not permit cause its Subsidiaries not to, : (i) amend its certificate Amended Articles of incorporation Incorporation or byAmended and Restated By-lawsLaws; (ii) offer, issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities other than pursuant to the Company's existing employee benefits plans; (iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its or its Subsidiaries' capital stock; (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of its Subsidiaries or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries; (vii) sell, lease, license, mortgage, pledge, encumber, transfer, exchange or otherwise dispose of any of its properties or assets, whether tangible or intangible (including capital stock of its Subsidiaries), other than the sale or disposition of inventory in the ordinary course of business consistent with past practice or the sale, lease or other disposition of assets which individually or in the aggregate, are obsolete or not material to the Company and its Subsidiaries taken as a whole; (viii) acquire by merger or consolidation with, by purchase of any equity interest of or by any other manner, any business or entity or otherwise acquire any assets, except for purchases of inventory, supplies or capital equipment in the ordinary course of business; (ix) incur or assume any long-term or short-term debt, except for working capital purposes and the purchase of capital equipment in the ordinary course of business under the Credit Facility; (x) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except its Subsidiaries; (xi) make or forgive any loans, advances or capital continuations to, or investments in, any other Person other than advances to officers or employees in the ordinary course of business consistent with past practice; (xii) increase the compensation (or benefits) payable to or to become payable to any director, officer or other employee, except for payments of bonuses not to exceed the amounts set forth on Section 5.2(b) of the Company Disclosure ---------------------------------------- Schedule, increases in salary or wages of non-officer employees in the -------- ordinary course of business and consistent with past practice or pursuant to any existing employment agreements of the Company; (xiii) establish, adopt, enter into, materially amend, or take any action to accelerate any rights or benefits under any collective bargaining agreement or any Plan; (xiv) effect any reorganization or recapitalization; (xv) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $250,000 individually and $500,000 in the aggregate, other than the payment, discharge, settlement or satisfaction in the ordinary course of business or in accordance with their terms, of liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports or incurred since the date of such financial statements in the ordinary course of business, or cancel any indebtedness in excess of $50,000 individually and $500,000 in the aggregate; (xvi) take any action that would reasonably be expected to: (A) prevent, impair or materially delay the ability of the Company, Parent or Merger Sub to consummate the Merger or (B) cause any of the conditions to the consummation of the Merger not to be satisfied; (xvii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle or compromise any liability with respect to Taxes, agree to any material adjustment of any Tax attribute, file any claim for a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; or (xviii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) From the date of this Agreement until to the Effective Time, except as set asset forth in Section 6.2 of the Company Disclosure LetterSCHEDULE 8.2(a), unless Purchaser has consented in writing thereto, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its operations according to its usual, regular and ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its their business organizations and goodwill, maintain in effect all existing qualifications, licenses, permits, approvals and other authorizations referred to in SECTIONS 6.1 and 6.14, keep available the services of its their officers and employees, employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) promptly upon the discovery thereof, promptly thereof notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until to the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letteron SCHEDULE 8.2(b), unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate Certificate of incorporation Incorporation or by-lawsBylaws or comparable governing instruments; (ii) issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of Options outstanding on the date hereof and disclosed in SCHEDULE 6.4) or any of the Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities; or accelerate any right to convert or exchange or acquire any securities of the Company for any such shares or ownership interest; (iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan; (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by a wholly-owned Subsidiary); (vi) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of ; (vii) sell, lease or otherwise dispose of any of its assets (including capital stock of Subsidiaries), except in the ordinary course of business, none of which dispositions individually or in the aggregate will be material; (viii) settle or compromise any pending or threatened Litigation, other than settlements which involve solely the payment of money (without admission of liability) not to exceed $500 in any one case; (ix) acquire by merger, purchase or any other manner, any business or entity or otherwise acquire any assets that are material, individually or in the aggregate, to the Company taken as a whole, except for purchases of inventory, supplies or capital equipment in the ordinary course of business consistent with past practice; (x) incur or assume any long-term or short-term debt, except for working capital purposes in the ordinary course of business under the Company's existing credit agreement set forth in SCHEDULE 6.19;(xi) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned Subsidiaries of the Company; (xii) make or forgive any loans, advances or capital continuations to, or investments in, any other person other than loans and advances to employees in the ordinary course of business which do not exceed $5,000 in the aggregate at any one time outstanding;(xiii) make any Tax election or settle any Tax liability other than settlements involving solely the payment of money, which settlement would be permitted by clause (viii); (xiv) grant any stock related or performance awards; (xv) enter into any employment, severance, consulting or salary continuation agreements with any officers, directors or employees or grant any increases incompensation or benefits to employees; (xvi) adopt, amend in any material respect or terminate any employee benefit plan or arrangement;(xvi) permit any insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business; and (xvii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) From the date of this Agreement until the Effective Timeearlier of (x) the date of initial purchase by Offer Sub of Common Shares pursuant to the Offer and (y) the date of termination of this Agreement pursuant to Section 6.1 hereof, except as set forth in Section 6.2 5.2 of the Company Disclosure Letter, unless Purchaser has consented in writing theretothereto (which consent shall not be unreasonably withheld or delayed), the Company shall, and shall cause its Subsidiaries to, (i) to the extent not inconsistent with the Company's obligations under any other section of this Agreement or under any Ancillary Document, conduct its operations according to its ordinary course of business consistent with past practice; (ii) to the extent not inconsistent with the Company's obligations under any other section of this Agreement or under any Ancillary Document, use its commercially reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered ; and (v) prior to the Board consummation of Directors after the date hereof Offer cause (x) all outstanding indebtedness for borrowed money due and monthly financial statements for payable to the Company or any of the Subsidiaries from any officers, directors or affiliates thereof to be repaid and its Subsidiaries for (y) all related notes and as instruments of each month end subsequent indebtedness to be canceled and terminated without any cost or penalty to the date of this AgreementCompany or the Subsidiaries.
(b) From and after the date of this Agreement until the Effective Timeearlier of (x) the date of initial purchase by Offer Sub of Common Shares pursuant to the Offer, and (y) the date of termination of this Agreement pursuant to Section 6.1 hereof, except as set forth in Section 6.2 5.2 of the Company Disclosure LetterLetter or as otherwise required in order for the Company to comply with its obligations under this Agreement and the Ancillary Documents, unless Purchaser has consented in writing theretothereto (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall not permit its Subsidiaries to, (i) amend its articles of association, certificate of incorporation incorporation, bylaws or by-lawsother organizational documents; (ii) issue, sell or pledge anyany shares of its capital shares or other ownership interest in the Company (other than issuances of Common Shares in respect of any exercise of share options or conversion of convertible notes, in either case, outstanding on the date hereof and issuances disclosed in Section 3.4 of the Company Disclosure Letter) or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital shares, ownership interest, or convertible or exchangeable securities (or derivative instruments in respect of the foregoing); (iii) effect any share split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital shares or take any action to cause to be exercisable any otherwise unexercisable option under any existing share option plan (except as otherwise required by the terms of such unexercisable options); (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital shares or other ownership interests (other than such payments by any Subsidiary of the Company to another Subsidiary of the Company or to the Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any of the Company's capital shares or capital shares of its Subsidiaries which are not owned by the Company or any Subsidiary of the Company; (vii) sell, lease or otherwise dispose of any of its assets (including capital shares of its Subsidiaries), other than the sale or disposition of inventory or the license of the Company's products, in each case in the ordinary course of business or the sale, lease or other disposition of assets which, individually or in the aggregate, are obsolete or not material to the Company and its Subsidiaries taken as a whole; (viii) (x) acquire by merger, purchase or any other manner, any business or entity or (y) otherwise acquire any assets which would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital equipment in the ordinary course of business consistent with past practice; (ix) incur or assume any long-term or short-term debt aggregating in excess of $1,000,000; (x) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the debt or other obligations of any other Person, other than obligations of its Subsidiaries or parent entity incurred in the ordinary course of business; (xi) make or forgive any loans, advances or capital contributions to, or investments in, any Person other than its Subsidiary or any parent entity; (xii) grant any share-related or equity performance awards; (xiii) except as contractually obligated on the date hereof (but only to the extent a copy of such contract, if written, or a written summary of such contract, if oral, has previously been provided to Parent) or as otherwise required under applicable Law, enter into any new employment, severance, consulting or salary continuation agreements with any officers, directors or employees or except as contractually obligated on the date hereof (but only to the extent a copy of such contractual commitment, if written, or a written summary of such contractual commitment, if oral, has previously been provided to Parent) or as otherwise required under applicable Law grant any increases in compensation, benefits to employees or non-equity performance awards, except for normal merit bonuses or salary increases for non-officer employees consistent with past practices; (xiv) except to the extent required by Law, adopt or amend in any material respect any material employee benefit plan or arrangement; (xv) permit any material insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business; (xvi) settle or compromise any pending or threatened Litigation for an amount in excess of $1,000,000 for any single matter of Litigation, or $5,000,000 in the aggregate for all such matters settled or compromised; (xvii) make any Tax election or settle any Tax liability other than settlements involving solely the payment of money (without admission of liability) not to exceed $1,000,000; and (xviii) agree in writing or otherwise to take any of the foregoing actions; provided, however, that nothing set forth herein shall prohibit or be deemed to prohibit the Company or any Subsidiary from agreeing to take any of the foregoing if such agreement's effectiveness is contingent upon termination of this Agreement pursuant to Section 6.1 hereof.
Appears in 1 contract
Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section 6.2 5.2(a) of the Company Disclosure Letter, unless Purchaser Parent has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, :
(i) conduct its operations according to its ordinary course of business consistent with past practicepractice and in compliance in all material respects with all applicable Laws; (ii) use its commercially reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers officers, employees and employeesconsultants, and maintain satisfactory relationships with those persons Persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser Parent of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Company Material Adverse EffectEffect or materiality, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Company Material Adverse EffectEffect or materiality, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser Parent true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof ; and monthly financial statements for the Company and (v) pay its Subsidiaries for and as of each month end subsequent to the date of this AgreementTaxes when due.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 5.2(b) of the Company Disclosure Letter, unless Purchaser Parent has consented in writing theretothereto (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall not permit cause its Subsidiaries not to, : (i) amend its certificate Certificate of incorporation Incorporation or byBy-lawsLaws; (ii) offer, issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities; (iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its or its Subsidiaries' capital stock; (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of its Subsidiaries or any securities that are convertible into or exchangeable for any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Company or any of its Subsidiaries; (vii) sell, lease, license, mortgage, pledge, encumber, transfer, exchange or otherwise dispose of any of its properties or assets, whether tangible or intangible (including capital stock of its Subsidiaries), other than the sale or disposition of inventory in the ordinary course of business consistent with past practice or the sale, lease or other disposition of assets which individually or in the aggregate, are obsolete or not material to the Company and its Subsidiaries taken as a whole; (viii) acquire by merger or consolidation with, by purchase of any equity interest of or by any other manner, any business or entity or otherwise acquire any assets which would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital equipment in the ordinary course of business and except for the acquisition of any business, entity or assets not having aggregate individual consideration greater than $50,000 or aggregate consideration greater than $100,000; (ix) incur or assume any long-term or short-term debt, except for working capital purposes and the purchase of capital equipment in the ordinary course of business under the Company's existing credit agreements set forth in Section 5.2(b) of the Company Disclosure Letter; (x) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except its Subsidiaries; (xi) make or forgive any loans, advances or capital continuations to, or investments in, any other Person other than loans and advances to officers or employees in the ordinary course of business, not to exceed $100,000 in the aggregate; (xii) increase the compensation (or benefits) payable to or to become payable to any director, officer or other employee, except for increases in salary or wages of non-officer employees in the ordinary course of business and consistent with past practice; (xiii) establish, adopt, enter into, materially amend, or take any action to accelerate any rights or benefits under any collective bargaining agreement or any Plan; (xiv) effect any reorganization or recapitalization; (xv) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $250,000 individually and $500,000 in the aggregate, other than the payment, discharge, settlement or satisfaction in the ordinary course of business or in accordance with their terms, of liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports or incurred since the date of such financial statements in the ordinary course of business, or cancel any indebtedness in excess of $10,000 individually and $50,000 in the aggregate; (xvi) take any action that would reasonably be expected to: (A) prevent, impair or materially delay the ability of the Company, Parent or Merger Sub to consummate the Merger or (B) cause any of the conditions to the consummation of the Merger not to be satisfied; (xvii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle or compromise any liability with respect to Taxes, agree to any material adjustment of any Tax attribute, file any claim for a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; or (xviii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 time Purchaser's designees constitute a majority of the Company Disclosure LetterBoard in accordance with Section 1.4 hereof, unless Purchaser has consented in writing thereto, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its operations according to its usual, regular and ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its their business organizations organizations, maintain in effect all existing material qualifications, licenses, permits, approvals and goodwillother authorizations referred to in SECTIONS 6.1 and 6.12, keep available the services of its their officers and employees, key employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) promptly upon the discovery thereof, promptly thereof notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement; and (v) maintain its books of account and records in its usual, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof regular and monthly financial statements for the Company and ordinary manner, consistent with its Subsidiaries for and as of each month end subsequent to the date of this Agreementpast practices.
(b) From Except as disclosed in Schedule 8.1 of the Company Disclosure Schedules, from and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 time Purchaser's designees constitute a majority of the Company Disclosure LetterBoard in accordance with Section 1.4 hereof, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit any of its Subsidiaries to, :
(i) amend its certificate of incorporation or by-laws; bylaws or comparable governing instruments;
(ii) issue, sell sell, pledge or register for issuance or sale any shares of capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of Options outstanding on the date hereof or in connection with the acquisitions of ▇▇▇▇.▇▇▇, Inc. and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.) or any of the Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, or ownership interest, or convertible or exchangeable securities or accelerate any right to convert or exchange or acquire any securities of the Company or any of its Subsidiaries for any such shares or ownership interest;
(iii) effect any stock split or conversion of any of its capital stock or otherwise change its capitalization as it exists on the date hereof, other than as set forth in this Agreement;
(iv) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of any of its Subsidiaries, other than as set forth in this Agreement;
(v) declare or pay any dividends on or make other distributions in respect of any of its capital stock;
(vi) sell, lease or otherwise dispose of any of its assets or properties (including capital stock of any of its Subsidiaries), mortgage, pledge anyor impose a lien or other encumbrance on any of its material assets or property (including capital stock of any of its Subsidiaries), except in the ordinary course of business;
(vii) acquire by merger, purchase or any other manner, any business or entity or otherwise acquire any assets that are material to the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital expenditures in the ordinary course of business consistent with past practice;
(viii) incur or assume any long-term or short-term debt, except for working capital purposes in the ordinary course of business under the Company's existing credit facilities and capital expenditures made in accordance with the Company's previously adopted capital budget, copies of which have been provided to Purchaser;
(ix) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned Subsidiaries of the Company;
(x) make or forgive any loans, advances or capital contributions to, or investments in, any other person;
(xi) enter into any new employment, severance, consulting or salary continuation agreements with any newly hired employees other than in the ordinary course of business or enter into any of the foregoing with any existing officers, directors or employees or grant any increases in compensation or benefits to any officers, directors or employees except for regularly scheduled employee raises in the ordinary course of business consistent with the Company's past practices or raises that, in the case of executive officers, have been approved by the compensation committee of the Board of Directors prior to the date hereof in the ordinary course of business consistent with the committee's past practices;
(xii) adopt or amend in any material respect (including any increase in the payment to or benefits under) or terminate any employee benefit plan or arrangement;
(xiii) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(xiv) except as may be required by law or generally accepted accounting principles, change any material accounting principles or practices used by the Company or its Subsidiaries;
(xv) take any action to cause the Common Stock to cease to be traded on the Nasdaq National Market prior to the completion of the Offer or the Merger;
(xvi) enter into any agreement providing for aggregate payments by the Company in excess of $100,000, PROVIDED, HOWEVER, that no consent shall be required with respect to any agreement for the purchase of media advertising providing for aggregate payments by the Company of less than $250,000;
(xvii) make any change to the pricing structure of its advertising inventory, except in the ordinary course of business, consistent with past practice;
(xviii) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(xix) fail to operate, maintain, repair or otherwise preserve its material assets and properties consistent with past practice;
(xx) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes except where such failure to comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(xxi) make any material tax election or settle or compromise any material federal, state, local or foreign income tax liability;
(xxii) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $250,000; or
(xxiii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 time Purchaser's designees constitute a majority of the Company Disclosure LetterBoard in accordance with Section 1.4 hereof, unless Purchaser has consented in writing thereto, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its operations according to its usual, regular and ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its their business organizations organizations, maintain in effect all existing material qualifications, licenses, permits, approvals and goodwillother authorizations referred to in Sections 6.1 and 6.12, keep available the services of its their officers and employees, key employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) promptly upon the discovery thereof, promptly thereof notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement; and (v) maintain its books of account and records in its usual, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof regular and monthly financial statements for the Company and ordinary manner, consistent with its Subsidiaries for and as of each month end subsequent to the date of this Agreementpast practices.
(b) From Except as disclosed in Schedule 8.1 of the Company Disclosure Schedules, from and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 time Purchaser's designees constitute a majority of the Company Disclosure LetterBoard in accordance with Section 1.4 hereof, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit any of its Subsidiaries to, :
(i) amend its certificate of incorporation or by-laws; bylaws or comparable governing instruments;
(ii) issue, sell sell, pledge or register for issuance or sale any shares of capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of Options outstanding on the date hereof or in connection with the acquisitions of ▇▇▇▇.▇▇▇, Inc. and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.) or any of the Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, or ownership interest, or convertible or exchangeable securities or accelerate any right to convert or exchange or acquire any securities of the Company or any of its Subsidiaries for any such shares or ownership interest;
(iii) effect any stock split or conversion of any of its capital stock or otherwise change its capitalization as it exists on the date hereof, other than as set forth in this Agreement;
(iv) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of any of its Subsidiaries, other than as set forth in this Agreement;
(v) declare or pay any dividends on or make other distributions in respect of any of its capital stock;
(vi) sell, lease or otherwise dispose of any of its assets or properties (including capital stock of any of its Subsidiaries), mortgage, pledge anyor impose a lien or other encumbrance on any of its material assets or property (including capital stock of any of its Subsidiaries), except in the ordinary course of business;
(vii) acquire by merger, purchase or any other manner, any business or entity or otherwise acquire any assets that are material to the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital expenditures in the ordinary course of business consistent with past practice;
(viii) incur or assume any long-term or short-term debt, except for working capital purposes in the ordinary course of business under the Company's existing credit facilities and capital expenditures made in accordance with the Company's previously adopted capital budget, copies of which have been provided to Purchaser;
(ix) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned Subsidiaries of the Company;
(x) make or forgive any loans, advances or capital contributions to, or investments in, any other person;
(xi) enter into any new employment, severance, consulting or salary continuation agreements with any newly hired employees other than in the ordinary course of business or enter into any of the foregoing with any existing officers, directors or employees or grant any increases in compensation or benefits to any officers, directors or employees except for regularly scheduled employee raises in the ordinary course of business consistent with the Company's past practices or raises that, in the case of executive officers, have been approved by the compensation committee of the Board of Directors prior to the date hereof in the ordinary course of business consistent with the committee's past practices;
(xii) adopt or amend in any material respect (including any increase in the payment to or benefits under) or terminate any employee benefit plan or arrangement;
(xiii) make any material changes in the type or amount of their insurance coverage or permit any material insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payee to be canceled or terminated;
(xiv) except as may be required by law or generally accepted accounting principles, change any material accounting principles or practices used by the Company or its Subsidiaries;
(xv) take any action to cause the Common Stock to cease to be traded on the Nasdaq National Market prior to the completion of the Offer or the Merger;
(xvi) enter into any agreement providing for aggregate payments by the Company in excess of $100,000, provided, however, that no consent shall be required with respect to any agreement for the purchase of media advertising providing for aggregate payments by the Company of less than $250,000;
(xvii) make any change to the pricing structure of its advertising inventory, except in the ordinary course of business, consistent with past practice;
(xviii) enter into, terminate, fail to renew, or accelerate any license, distributorship, dealer, sales representative, joint venture, credit or other agreement if such action could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(xix) fail to operate, maintain, repair or otherwise preserve its material assets and properties consistent with past practice;
(xx) fail to comply with all applicable filing, payment and withholding obligations under all applicable federal, state, local or foreign laws relating to Taxes except where such failure to comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(xxi) make any material tax election or settle or compromise any material federal, state, local or foreign income tax liability;
(xxii) pay, discharge, settle or satisfy any claims, liabilities or objections (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of the foregoing in the ordinary course of business consistent with past practice, or, if not in the ordinary course of business, the payment, discharge or satisfaction of the foregoing that, individually and in the aggregate, does not exceed $250,000; or
(xxiii) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Uproar Inc)
Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section SECTION 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, (i) conduct its operations according to its ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section SECTION 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate of incorporation or by-laws; (ii) issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of stock options or warrants outstanding on the date hereof and disclosed in SECTION 4.4 of the Company Disclosure Letter or pursuant to the Purchase Plan as permitted by SECTION 6.9) or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities (or derivative instruments in respect of the foregoing); (iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan (except as otherwise required by the terms of such unexercisable options or the stock option plan); (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company);
Appears in 1 contract
Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section SECTION 6.2 of the Company Disclosure Letter, unless Purchaser Parent has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, (i) conduct its operations according to its ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons Persons having business relationships with them; and (iii) upon the discovery thereof, promptly notify Purchaser Parent of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section SECTION 6.2 of the Company Disclosure Letter, unless Purchaser Parent has consented in writing thereto, the Company shall not, and shall not permit cause each of its Subsidiaries not to, :
(i) amend its certificate of incorporation or by-laws; ;
(ii) issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of stock options outstanding on the date hereof and disclosed in SECTION 4.4 of the Company Disclosure Letter) or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities (or derivative instruments in respect of the foregoing);
(iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof, or directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of its Subsidiaries;
(iv) (A) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any Company Stock Plan (except as otherwise required by the terms of such unexercisable options), (B) accelerate or waive any or all of the goals, restrictions or conditions imposed under any Award, or (C) issue, sell, grant or award any shares of capital stock or any right to acquire shares of capital stock under any Company Stock Plan (except as otherwise required by such plan);
(v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company);
Appears in 1 contract
Interim Operations. (a) From Except as (x) required by applicable Law, (y) otherwise expressly contemplated or expressly required by this Agreement or (z) otherwise set forth in Section 6.1 of the Company Disclosure Letter, the Company covenants and agrees that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, such approval not to be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause its Subsidiaries to, conduct their business in the ordinary course and, to the extent consistent therewith, it shall, and shall cause its Subsidiaries, to use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, employees and business associates; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters specifically addressed by clauses (i) to (xviii) of this Section 6.1(a) shall be a breach of this Section 6.1 unless such action constitutes a breach of clauses (i) to (xviii) of this Section 6.1(a). Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except as (A) required by applicable Law, (B) otherwise expressly contemplated or expressly required by this Agreement, (C) Parent may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned) or (D) as set forth in Section 6.2 6.1 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall, will not and shall cause will not permit any of its Subsidiaries to, :
(i) conduct adopt any change in its operations according certificate of incorporation or bylaws or other applicable governing instruments;
(ii) merge or consolidate with any other Person or restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or any assets constituting a division or business line of any Person from any other Person, in each case with a value or purchase price in the aggregate in excess of $10 million individually or in the aggregate;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guaranty or encumbrance of, any shares of capital stock of the Company or any its Subsidiaries (other than (A) the issuance of Common Shares upon the exercise of Company Options or the vesting of Company PSUs or Company RSUs (and dividend equivalents thereon, if applicable), (B) the issuance of Common Shares upon conversion of the 2015 Notes, (C) the issuance of Common Shares pursuant to Benefit Plans or (D) the issuance or transfer of common stock by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $10 million in the aggregate;
(vi) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the acquisition of any Common Shares tendered by current or former employees or directors in connection with the cashless exercise of Company Options or in order to pay Taxes in connection with the exercise of Company Options or the vesting of Company PSUs or Company RSUs);
(viii) incur any Indebtedness for borrowed money or guarantee such Indebtedness of another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for (A) Indebtedness for borrowed money under the revolving facility under the Company Credit Agreement and (B) other Indebtedness in an amount not to exceed $15 million;
(ix) except as set forth in the current capital forecast set forth in Section 6.1(a)(ix) of the Company Disclosure Letter, make or authorize any capital expenditures in excess of $5 million in the aggregate;
(x) make any material changes with respect to any method of Tax or financial accounting policies or procedures, except as required by changes in GAAP or by a Governmental Entity;
(xi) subject to Section 6.17, settle or compromise any litigation, audit, claim or action against the Company or any of its Subsidiaries other than settlements or compromises of any litigation, audit, claim or action except (A) where the amount paid in settlement or compromise, does not exceed $10 million individually or $25 million in the aggregate or (B) where the amount paid in settlement does not exceed the amount reserved against such matter in the most recent financial statements (or the notes thereto) of the Company included in the Company Reports;
(xii) other than in the ordinary course of business or to the extent required by Law, make any material Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund;
(xiii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, with a value in excess of $10 million in the aggregate, except for (A) sales and non-exclusive licenses of products and services of the Company and its Subsidiaries in the ordinary course of business, (B) any abandonment of Intellectual Property that the Company or any Subsidiary determines in the exercise of its reasonable business judgment to abandon in the ordinary course of business, (C) dispositions of obsolete or worthless assets, (D) any non-renewal of any lease of real property that has expired by its terms or the termination of a lease of real property that is not a Material Lease and (E) transfers among the Company and its wholly owned Subsidiaries;
(xiv) (A) grant or provide any severance or termination payments or benefits to any director, consultant or employee of the Company or any of its Subsidiaries, except, in the case of employees who are not executive officers of the Company, in the ordinary course of business consistent with past practicepractices or as required by agreements, plans, programs or arrangements in effect on the date hereof, (B) increase in any manner the compensation or bonus of, or make or amend in any respect any equity awards under any Benefit Plan to, or grant any bonuses to, any director, consultant or employee of the Company or any of its Subsidiaries, except (1) in the case of employees or consultants who are not executive officers of the Company, in the ordinary course of business consistent with past practices, and (2) in the case of employees who are executive officers of the Company, (x) increases in base salary in connection with the Company’s usual and customary annual review in 2011, so long as any such increases are consistent with past practices, and (y) granting of Company PSUs that can be settled for up to 288,200 Company Shares in connection with the Company’s usual and customary annual review in 2011, so long as any such grants are consistent with past practices, (C) except as required by Law, establish, adopt, terminate or amend any Benefit Plan (other than routine changes to welfare plans) or accelerate the vesting of any compensation for the benefit of any Person; or (iiD) except as required by Law, establish, adopt, enter into or amend any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any current or former directors, consultants, officers or employees or any of their beneficiaries;
(xv) grant a license of any material Intellectual Property owned by the Company or any of its Subsidiaries other than in the ordinary course of business;
(xvi) disclose any confidential information relating to any material Intellectual Property, except pursuant to the issuance of a patent, publication of a patent application, or subject to a confidentiality agreement, or allow any lapse or abandonment of any material Intellectual Property, or any registration or grant thereof, or any application related thereto to which, or under which, the Company or any Subsidiary has any ownership interest, excluding any such disclosure or abandonment made by the Company or any Subsidiary thereof in the exercise of its reasonable business judgment or any amendment, withdrawal, or cancellation of claims of a patent application that occurs in the ordinary course of prosecuting such patent application;
(xvii) enter into any arrangements relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company or any Subsidiary thereof, whether as part of the terms of the capital stock of the Company or any Subsidiary or by any separate agreement, pursuant to which the Company and its Subsidiaries reasonably expect to make aggregate payments in excess of $10 million in any calendar year;
(xviii) enter into any transaction with any Affiliate of the Company (other than any of its Subsidiaries) providing for payments by or to the Company or any Subsidiary thereof in excess of $125,000, other than the agreements expressly contemplated by this Agreement; or
(xix) agree, authorize or commit to do any of the foregoing.
(b) Neither Parent nor Merger Sub shall knowingly take or permit any of their Affiliates to take any action that is reasonably likely to prevent or delay the consummation of the Merger.
(c) The Company shall use its reasonable best efforts to preserve intact cause to be delivered to Parent at the Closing an executed affidavit dated as of the Closing Date in accordance with Treasury Regulation Section 1.897-2(h)(2), certifying that an interest in the Company is not a U.S. real property interest within the meaning of Section 897(c) of the Code and which sets forth the Company’s name, address and taxpayer identification number (the “FIRPTA Affidavit”). In the event the Company reasonably determines that is unable to deliver the FIRPTA Affidavit to Parent, it shall provide written notice no later than ten (10) days prior to the Closing Date indicating that it will be unable to deliver the FIRPTA Affidavit. In such case, the Company shall thereafter cooperate with Parent to enable Parent to withhold any Taxes from the Merger Consideration that the Parent determines is subject to withholding as a result of the Company’s failure to deliver such FIRPTA Affidavit.
(d) Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or its business organizations and goodwill, keep available Subsidiaries’ operations prior to the services of its officers and employeesEffective Time, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon nothing contained in this Agreement is intended to give the discovery thereofCompany, promptly notify Purchaser directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each of Parent and the existence of any breach of any representation or warranty contained herein (orCompany shall exercise, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed consistent with the SEC subsequent to the date terms and conditions of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof complete control and monthly financial statements for the Company supervision over its and its Subsidiaries for and as of each month end subsequent to the date of this AgreementSubsidiaries’ respective operations.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate of incorporation or by-laws; (ii) issue, sell or pledge any
Appears in 1 contract
Sources: Merger Agreement (Commscope Inc)
Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser Parent has consented in writing thereto, the Company shall, and shall cause its Subsidiaries to, (i) conduct its operations according to its ordinary course of business consistent with past practice; (ii) use its reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons Persons having business relationships with them; and (iii) upon the discovery thereof, promptly notify Purchaser Parent of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser Parent has consented in writing thereto, the Company shall not, and shall not permit cause each of its Subsidiaries not to, :
(i) amend its certificate of incorporation or by-by- laws; ;
(ii) issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of stock options outstanding on the date hereof and disclosed in Section 4.4 of the Company Disclosure Letter) or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities (or derivative instruments in respect of the foregoing);
(iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof, or directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of its Subsidiaries;
(iv) (A) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any Company Stock Plan (except as otherwise required by the terms of such unexercisable options), (B) accelerate or waive any or all of the goals, restrictions or conditions imposed under any Award, or (C) issue, sell, grant or award any shares of capital stock or any right to acquire shares of capital stock under any Company Stock Plan (except as otherwise required by such plan);
(v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company);
Appears in 1 contract
Interim Operations. L3 and ▇▇▇▇▇▇ each covenant and agree as to itself and its Subsidiaries that, after the date of this Agreement and prior to the Effective Time (aunless L3 or ▇▇▇▇▇▇, as applicable, shall otherwise approve in writing (which approval shall not be unreasonably withheld, conditioned or delayed)), and except as otherwise expressly contemplated by this Agreement or as required by a Governmental Entity or applicable Law or as set forth in Section 8.1(a) From of such Party’s Disclosure Letter, the business of it and its Subsidiaries shall be conducted in all material respects in the Ordinary Course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, Employees and business associates and keep available the services of its and its Subsidiaries’ present officers, Employees and agents, except as otherwise expressly contemplated by this Agreement or as required by a Governmental Entity or applicable Law. Without limiting the generality of and in furtherance of the foregoing, from the date of this Agreement until the Effective Time, except as otherwise (i) expressly contemplated by this Agreement, (ii) required by a Governmental Entity or applicable Law or the terms of any Material Contract or Benefit Plan existing as of the date of this Agreement, (iii) as approved in writing by the other Party (which approval shall not be unreasonably withheld, conditioned or delayed) or (iv) set forth in Section 6.2 8.1(a) of the Company such Party’s -37- 052054-0169-16505-Active.27978848.6 SC1:4755315.9 Disclosure Letter, unless Purchaser has consented in writing theretoeach Party, the Company shallon its own account, shall not and shall cause its Subsidiaries not to, : (i) conduct its make or propose any change to such Party’s Organizational Documents or, except for amendments that would not materially restrict the operations according to its ordinary course of business consistent with past practicesuch Party’s businesses, the Organizational Documents of any of such Party’s Subsidiaries; (ii) other than in the Ordinary Course, except for any such transactions among its wholly owned Subsidiaries, (A) merge or consolidate itself or any of its Subsidiaries with any other Person, or (B) restructure, reorganize or completely or partially liquidate; (iii) acquire assets outside of the Ordinary Course from any other Person (A) with a fair market value or purchase price in excess of $200 million in the aggregate in any transaction or series of related transactions (including incurring any Indebtedness related thereto), in each case, including any amounts or value reasonably expected to be paid in connection with a future earn-out, purchase price adjustment, release of “holdback” or similar contingent payment obligation, or (B) that would reasonably be expected to prevent, materially delay or materially impair the ability of L3 or ▇▇▇▇▇▇, as applicable, to consummate the Transactions, in each case, other than acquisitions of inventory or other goods in the Ordinary Course; (iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of its capital stock or of any of its Subsidiaries (other than the issuance of shares (A) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries, (B) in respect of equity-based awards outstanding as of the date of this Agreement, or (C) granted in accordance with Section 8.1(a)(xviii), the ESPP or each Party’s 401(k) Plans, in each of clauses (B) and (C), in accordance with their terms and, as applicable, the plan documents as in effect on the date of this Agreement), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities; (v) create or incur any Encumbrance (other than any Permitted Encumbrances) over any material portion of such Party’s and its Subsidiaries’ consolidated properties and assets that is not incurred in the Ordinary Course on any of its assets or any of its Subsidiaries; (vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from L3 and any of its wholly owned Subsidiaries or to or from ▇▇▇▇▇▇ and any of its wholly owned Subsidiaries, as applicable, or in accordance with Section 8.1(a)(xviii)) in excess of $50 million in the aggregate; (vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary); provided, that (A)(1) ▇▇▇▇▇▇ may make, declare and pay one -38- 052054-0169-16505-Active.27978848.6 SC1:4755315.9 regular quarterly cash dividend in each quarter of the year ending June 28, 2019 in an amount per share of $0.685 per quarter with a record date consistent with the record date for each quarterly period of the year ended June 29, 2018 and (2) from and after July 1, 2019, ▇▇▇▇▇▇ may make, declare and pay one regular quarterly cash dividend in each quarter of the year ending June 30, 2020 in an amount per share up to $0.055 higher than the dividend paid for the same quarterly period of the year ended June 28, 2019 and with a record date consistent with the record date for each quarterly period of the year ended June 28, 2019, if, in the case of clauses (1) and (2), ▇▇▇▇▇▇ provides L3 with written notice of each record date it will select at least twenty (20) Business Days prior to the declaration date in respect of such applicable record date and (B)(1) L3 may make, declare and pay one regular quarterly cash dividend in each quarter of the year ending December 31, 2018 in an amount per share of $0.80 per quarter and with a record date consistent with the record date for each quarterly period of the year ended December 31, 2017 and (2) from and after January 1, 2019, L3 may make, declare and pay one regular quarterly cash dividend in each quarter of the year ending December 31, 2019 in an amount per share up to $0.05 higher than the dividend paid for the same quarterly period of the year ended December 31, 2018 and with a record date consistent with the record date for each quarterly period of the year ended December 31, 2018, if, in the case of clauses (1) and (2), L3 provides ▇▇▇▇▇▇ with written notice of each record date it will select at least twenty (20) Business Days prior to the declaration date in respect of such applicable record date, in each case, solely to the extent such payment is coordinated pursuant to, and permitted by, Section 8.17; (viii) reclassify, split, combine, subdivide or redeem, purchase (through such Party’s share repurchase program or otherwise) or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, other than with respect to (A) the capital stock or other equity interests of a wholly owned Subsidiary of L3 or ▇▇▇▇▇▇, as applicable; (B) net withholding upon the exercise or settlement of equity-based awards outstanding as of the date of this Agreement or granted in accordance with Section 8.1(a)(xviii) in the Ordinary Course and in accordance with their terms and, as applicable, the plan documents as in effect on the date of this Agreement; or (C) such Party’s matching contributions to its 401(k) Plans in the form of capital stock in the Ordinary Course and in accordance with the terms of the plan documents as in effect on the date of this Agreement; (ix) except to the extent expressly provided by, and consistent with, Section 8.1(a)(ix) of such Party’s Disclosure Letter, make or authorize any payment of, or accrual or commitment for, capital expenditures, except any such expenditure (A) to the extent reasonably necessary to avoid a material business interruption as a result of any act of God, war, terrorism, earthquake, fire, hurricane, storm, flood, civil disturbance, explosion, partial or entire failure of utilities or IT Assets, or any other similar cause not reasonably within the control of such Party or its Subsidiaries, (B) not in excess of $50 million in the aggregate during any consecutive twelve (12) month period (other than capital expenditures within the thresholds set forth in Section 8.1(a)(ix) of such Party’s Disclosure Letter), or (C) expenditures that such Party reasonably determines are necessary to maintain the safety and integrity of any asset or property in response to any unanticipated and subsequently discovered events, occurrences or developments (provided that L3 or ▇▇▇▇▇▇, as applicable, will use its reasonable best efforts to preserve intact its business organizations and goodwill, keep available consult with the services of its officers and employees, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser of the existence of other Party prior to making or agreeing to any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respectcapital expenditure); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate of incorporation or by-39- 052054-laws; (ii) issue, sell or pledge any0169-16505-Active.27978848.6 SC1:4755315.9
Appears in 1 contract
Sources: Merger Agreement (Harris Corp /De/)
Interim Operations. (a) From the date of this Agreement until the Effective Time, except as set forth in Section 6.2 Schedule 6.2(a) of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall, and shall cause its the Subsidiaries to, (i) conduct its operations according to its ordinary course of business consistent with past practice; (ii) use its commercially reasonable best efforts to preserve intact its business organizations and goodwill, keep available the services of its officers and employees, and maintain satisfactory relationships with those persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct (or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof and monthly financial statements for the Company and its Subsidiaries for and as of each month end subsequent to the date of this Agreement.
(b) From and after the date of this Agreement until the Effective Time, except as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, and shall not permit its the Subsidiaries to, (i) amend its certificate Certificate of incorporation Incorporation or by-lawsBylaws; (ii) issue, sell or pledge anyany shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of stock options outstanding on the date hereof and disclosed in the Company Disclosure Letter) or the Subsidiaries, or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities (except as permitted under clause (xii) of this Section 6.2(b)); (iii) effect any stock split or otherwise change its capitalization as it exists on the date hereof; (iv) grant, confer or award any option, warrant, convertible security or other right to acquire any shares of its capital stock or securities convertible into or exchangeable for any shares of its capital stock or any stock appreciation rights, phantom stock plans or profit sharing plans (except as permitted under clause (xii) of this Section 6.2(b)) or take any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan (except as otherwise required by the terms of such unexercisable options); (v) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests (other than such payments by the Subsidiaries to the Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or capital stock of the Subsidiaries; (vii) sell, lease, license, abandon, transfer, mortgage pledge or otherwise encumber or subject to any lien or otherwise dispose of any of its assets (including capital stock of the Subsidiaries), other than the sale or disposition of inventory in the ordinary course of business, the disposition of damaged, non-saleable or defective inventory consistent with past practice, or the sale, lease or other disposition of assets consistent with past practice which, individually or in the aggregate, are not material to the Company and the Subsidiaries taken as a whole; (viii) acquire by merger, purchase or any other manner, any business or entity or otherwise acquire or make commitments to acquire any assets which would be material, individually or in the aggregate, to the Company and the Subsidiaries taken as a whole, except for purchases of inventory, supplies, equipment parts or capital equipment in the ordinary course of business consistent with past practice; (ix) incur or assume any long-term or short-term debt, except for working capital purposes in the ordinary course of business consistent with past practice under the Company's existing credit agreements set forth in Schedule 4.19 of the Company Disclosure Letter in accordance with the terms thereof; (x) 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 permitted under this Agreement; (xi) make or forgive any loans, advances or capital continuations to, or investments in, any other person other than loans and advances to officers or employees in the ordinary course of business consistent with past practice, but in no event in an amount more than $10,000 for any one transaction or $50,000 in the aggregate; (xii) grant any stock-related or performance awards, other than performance awards in the ordinary course of business consistent with past practice pursuant to the terms and conditions of the Company Benefits Plans and, in the case of stock related awards, other than in an aggregate amount not to exceed 210,000 shares of Common Stock (including any options, warrants, convertible securities or other rights to acquire Common Stock); (xiii) other than in the ordinary course of business consistent with past practice, enter into, amend or renew any employment, severance, consulting or salary continuation agreements with any officers, directors or employees, grant any severance or termination pay to any director, officer or employee or grant any increases in compensation or benefits to employees other than in the ordinary course of business consistent with past practice or as set forth in the Disclosure Letter; (xiv) except to the extent required by this Agreement, law or in the ordinary course of business consistent with past practice, adopt or amend in any respect or make any new grants or awards under any employee benefit plan or arrangement; (xv) amend, change or waive (or exempt any person or entity, other than the Purchaser, from the effect of) the Rights Agreement, except in connection with the exercise of fiduciary duties by the Board as set forth in Section 6.1 of this Agreement or as contemplated by Section 4.21; (xvi) amend, modify or waive any material term of any outstanding security of the Company and the Subsidiaries, except as required by this Agreement; (xvii) fail to (A) maintain in all material respects any real property to which the Company and the Subsidiaries have ownership (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, (B) timely pay in all material respects all taxes, water and sewer rents, assessments and insurance premiums affecting such real property and (C) timely comply in all material respects with the terms and provisions of all leases, contracts and agreements relating to or affecting such real property and the use and operation thereof; (xviii) enter into any labor or collective bargaining agreement, memorandum of understanding, grievance settlement or any other agreement or commitment to or relating to any labor union; (xix) adopt a plan of complete or partial liquidation or adopt resolutions providing for complete or partial liquidation, dissolution, consolidation, merger, restructuring or recapitalization, other than the Merger; (xx) settle or compromise any material claims or litigation, except in the ordinary course of business, modify, amend or terminate any of its material contracts or waive, release or assign any material rights or claims, or make any payment, direct or indirect, of any material liability before the same becomes due and payable in accordance with its terms; (xxi) take any action, other than in the ordinary course of business, with respect to accounting policies or procedures (including tax accounting policies and procedures), except as may be required by law or GAAP; (xxii) make any material tax election or amend any material Tax Return or any material insurance policy naming it as beneficiary or a loss payable payee to be canceled or terminated without notice to Purchaser; (xxiii) take, or agree or commit to take, any action that would, or is reasonably likely to, make any representation or warranty of the Company hereunder inaccurate at, or as of any time prior to, the Effective Time or in any of the conditions to the Merger set forth in Article VIII not being satisfied, or omit, or agree or commit 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 conditions from not being satisfied; or (xxiv) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Osullivan Industries Holdings Inc)
Interim Operations. (a) From During the period from the date of this Agreement and continuing until the Effective Timeearlier of the termination of this Agreement in accordance with Article VIII hereof or until such time as Buyer’s designees shall constitute a majority of the members of the Board of Directors of the Company, except as Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or as set forth in Section 6.2 of the Company Disclosure Letter, unless Purchaser has consented in writing theretoSchedule, the Company shall, and shall cause each of its Subsidiaries to, :
(i) conduct its their respective operations according to its their usual, regular and ordinary course of business consistent with past practice; and take no action which would reasonably be expected to adversely affect its ability to consummate the transactions contemplated by this Agreement;
(ii) use its commercially reasonable best efforts to preserve intact its their respective business organizations and goodwill, keep available the services of its their respective officers and employees, employees (excluding administrative staff) and maintain satisfactory relationships with those persons having significant business relationships dealings with them; ;
(iii) upon not (A) amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments or (B) amend the discovery thereofRights Agreement or take any action with respect to, or make any determination under, the Rights Agreement, including, without limitation, redemption of the rights issued pursuant to the Rights Agreement or any action to facilitate an Alternative Proposal;
(iv) promptly notify Purchaser Buyer of the any Company Material Adverse Effect (or any occurrence or existence of any event which is reasonably likely to result in a Company Material Adverse Effect) without regard to clause (z) of the proviso in the definition thereof set forth in Section 5.1, any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or any breach of (or the occurrence or existence of any event which is reasonably likely to result in any breach of) any representation or warranty contained herein (or, that is reasonably likely to result in the case conditions set forth Annex A not being capable of satisfaction on or before the Outside Date;
(v) not modify, extend the term or forgive or cancel any representation outstanding loans owed to the Company or warranty that makes no reference to Material Adverse Effectany of its Subsidiaries by any current or former directors, any breach officers, employees consultants or independent contractors of such representation entities other than any modification, extension, forgiveness or warranty in any material respect) or cancellation pursuant to contractual rights existing on the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and correct date hereof as disclosed on the Company Disclosure Schedule;
(or, in the case of any representation or warranty that makes no reference to Material Adverse Effect, to no longer be true and correct in any material respect); and (ivvi) promptly deliver to Purchaser Buyer true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement, any internal monthly reports prepared for or delivered ;
(vii) not (A) except pursuant to the Board exercise of Directors after options, warrants, conversion rights and other contractual rights existing on the date hereof and monthly financial statements for disclosed pursuant to this Agreement, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any capital stock, effect any stock split or otherwise change its capitalization as it existed on the date hereof; (B) grant, confer or award any option, warrant, conversion right or other right not set forth on the Company and Disclosure Schedule to acquire any shares of its Subsidiaries for and as of each month end subsequent capital stock or such securities; (C) enter into any agreement, understanding or arrangement with respect to the date sale, voting, registration or repurchase of this Agreement.
its capital stock; (bD) From and after increase any compensation or enter into or amend any employment agreement or arrangements with any of its present or future officers, directors or employees; (E) grant any severance or termination package to any director, officer, employee or consultant other than rights set forth on the date Company Disclosure Schedule; (F) hire any new employee who shall have, or terminate the employment of this Agreement until the Effective Timeany current employee who has an annual salary in excess of $100,000; (G) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend, except as set forth required by applicable law (in Section 6.2 which case the Company should provide prompt written notice to Buyer following such adoption), any existing Benefit Plan in any material respect, except for changes which are not more favorable to participants in such plans; (H) other than in the ordinary course of business, enter into any transaction with any director or executive officer of the Company or any of its Subsidiaries or any immediate family member of any such director or executive officer other than rights set forth on the Company Disclosure LetterSchedule; or (I) except in the ordinary course of business, unless Purchaser has consented hire any additional consultants or independent contractors or enter into or extend the term of any consulting or independent contractor relationship;
(viii) not (A) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of its capital stock or other ownership interests; or (B) directly or indirectly, redeem, purchase or otherwise acquire any shares of its capital stock, or make any commitment for any such action;
(ix) not enter into any agreement, commitment or transaction, or agree to enter into any such agreement or transaction, or modify or extend any such agreement or transaction, involving payments by the Company in excess of $50,000 individually or $250,000 in the aggregate, including, without limitation, a purchase, sale, lease or other disposition of assets or capital stock (including, without limitation, securities of Subsidiaries);
(x) not enter into any transaction involving a merger, consolidation, joint venture, license agreement, partial or complete liquidation or dissolution, reorganization, recapitalization or restructuring;
(xi) not sell, assign, transfer, encumber, enter into any outbound license or covenant not to s▇▇ with respect to, grant any exclusive right with respect to, or otherwise dispose of any Company Property;
(xii) not incur, create, assume or otherwise become liable for any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of others;
(xiii) not make any loans, advances or capital contributions to, or investments in, any other Person;
(xiv) except as described in the Company Disclosure Schedule, not make or commit to make any capital expenditures in excess of $50,000 individually or $100,000 in the aggregate;
(xv) not apply any of its assets or properties to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable, directly or indirectly, to or for the benefit of any affiliate or Related Party or enter into any transaction with any affiliate or Related Party (except for payment of salary and other customary expense reimbursements made in the ordinary course of business to Related Parties who are employees, directors or consultants of the Company or its Subsidiaries);
(xvi) not make any changes in accounting methods, principles or practices in effect as of the date hereof, other than as required by GAAP and good accounting practices;
(xvii) not grant or make any mortgage or pledge or subject itself or any of its material assets or properties to any material lien, charge or encumbrance of any kind, except Permitted Encumbrances;
(xviii) not alter, amend or revoke any Tax election or method of accounting with respect to Taxes or settle or compromise any material Tax claim;
(xix) maintain insurance on its tangible assets and its businesses in such amounts and against such risks and losses as are currently in effect;
(xx) except as required in accordance with GAAP, not revalue any of its assets, including, without limitation, writing theretodown the value of its inventory or writing off notes or accounts receivable, other than in the ordinary course of business;
(xxi) not settle any legal proceedings, whether now pending or hereafter made or brought;
(xxii) not modify or amend, or terminate, or waive, release or assign any material rights or claims with respect to, any material agreement or arrangement to which it is a party;
(xxiii) pursuant to or within the meaning of any bankruptcy law, not (A) commence a voluntary case, (B) consent to the entry of an order for relief against it in an involuntary case, (C) consent to the appointment of a custodian of it or for all or substantially all of its property or (D) make a general assignment for the benefit of its creditors;
(A) other than in the ordinary course of business, not amend, modify, assign, terminate, reject, cancel or fail to exercise a right of renewal or extension, any IP Contract; or (B) continue to diligently prosecute all claims in the Company Patent applications and maintain and not abandon any Company Property; and
(xxv) not authorize any of, or announce an intention to, commit or agree to take any of, the Company shall not, and shall not permit its Subsidiaries to, (i) amend its certificate of incorporation or by-laws; (ii) issue, sell or pledge anyforegoing actions.
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