Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure Letter), Parent and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion): (A) (I) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Parent Voting Debt (other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice); (C) amend Parent’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreement; (D) directly or indirectly, (I) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement; (E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing; (F) enter into any new collective bargaining agreement involving unions in more than one state; (G) change any accounting principle used by it, except as required by applicable Law or GAAP; or (H) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 4 contracts
Sources: Merger Agreement (Usf Corp), Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b6.1(a) of the Parent Company Disclosure Letter), Parent the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and the Company or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(b)(i6.1(a) of the Parent Company Disclosure Letter, prior to the Effective Time Parent Time, the Company and its Subsidiaries shall not, without the prior written consent of the Company Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (in each case from understanding that Parent may weigh the point of view of the operations interests of Parent and its Subsidiaries, taken as including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a wholeconsent), and the Company Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(b6.1(a) in a reasonably timely fashion):
(A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Parent Company Voting Debt (other than (I) the issuance of shares of Parent Common Stock Shares upon the exercise of options or other stock awards Company Options outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice);
(C) amend Parentthe Company’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreementbylaws;
(D) directly acquire or indirectly, agree to acquire (I) enter into any transactionby merging or consolidating with, other than the Merger, that would require approval or by purchasing a substantial portion of the stockholders stock, or other ownership interests in, or substantial portion of Parent under applicable Law assets of, or stock exchange rules; (II) enter into an agreementby any other manner, other than this Agreementany business or any corporation, relating to (x) any acquisitionpartnership, merger, consolidationassociation, joint venture, tender offerlimited liability company or other entity or division thereof or (II) any assets that would be material, share exchange, business combination with, individually or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitionsaggregate, mergersto the Company and its Subsidiaries, consolidationstaken as a whole, joint ventures, tender offers, share exchanges, business combinations with, or except purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (providedsupplies, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million equipment and inventory in the aggregate (determined, in each case, in accordance ordinary course of business consistent with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementpast practice;
(E) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate;
(F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate;
(H) make any material election relating to Taxes or settle or compromise any material Tax liability;
(I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party;
(J) restructure, recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing;
(FK) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms;
(GL) change any accounting principle used by it, except as required by applicable Laws or GAAP;
(M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts;
(N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or GAAPto maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or
(HO) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 4 contracts
Sources: Merger Agreement (Usf Corp), Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure LetterAgreement), Parent EVI shall and shall cause each of its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):significant subsidiaries
(Ai) (IA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of EVI to EVI or a wholly owned subsidiary of EVI and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (C) purchase, redeem or otherwise acquire any shares of capital stock of EVI or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options;
(Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Parent Voting Debt convertible securities other than, in the case of EVI, (other than (IA) the issuance of shares of Parent EVI Common Stock upon the exercise of stock options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans Agreement in accordance with their current terms and past practice)terms, (B) those acquisitions described in Section 4.2 of the EVI Disclosure Schedule, or (C) the issuance of a number of shares of EVI Common Stock, not to exceed 10% of the number of shares of EVI Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses;
(Ciii) amend Parent’s certificate EVI's Restated Certificate of incorporation Incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreementBy-laws;
(Div) directly except for those contemplated transactions described in the EVI Disclosure Letter, acquire or indirectlyagree to acquire any business, (I) enter into any transactioncorporation, other than the Mergerpartnership, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidationassociation, joint venture, tender offerlimited liability company or other entity or division thereof involving the payment of consideration, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) aggregate for all such acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 250 million individually (providedwithout the written consent of the Company, however, that the foregoing restriction which consent shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementunreasonably withheld;
(Ev) recapitalizeincur any obligation for borrowed money or purchase money indebtedness, reorganize whether or completely not evidenced by a note, bond, debenture or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(G) change any accounting principle used by itsimilar instrument, except as required by applicable Law or GAAP; or
(H) authorize any of, or commit or agree to take any of, for such borrowings that would not result in the foregoing actions.total
Appears in 3 contracts
Sources: Merger Agreement (Evi Inc), Merger Agreement (Evi Inc), Merger Agreement (Weatherford Enterra Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure LetterAgreement), Parent the Company shall and shall cause its Subsidiaries shall "significant subsidiaries" (as that term is defined in the regulations promulgated under the Exchange Act) to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and its Subsidiariesthem, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):the
(Ai) (IA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly owned subsidiary of the Company and immaterial dividends, distributions and other similar transactions involving the existing subsidiaries, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities other than in connection with the exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options or Company Shares issued pursuant to the Company's Restricted Stock Incentive Plan;
(Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Parent Voting Debt convertible securities (other than (I) than, in the case of the Company, the issuance of shares of Parent Company Common Stock upon the exercise of stock options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans Agreement in accordance with their current terms terms) and past practice)those stock option and restricted stock grants set forth in Section 4.1(a)(ii) of the Company Disclosure Schedule that may be made pursuant to a form of stock option agreement previously approved by EVI;
(Ciii) amend Parent’s certificate the Company's Corrected Restated Certificate of incorporation Incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreementAmended and Restated By-laws;
(Div) directly except for those contemplated transactions described in the Company Disclosure Letter, acquire or indirectlyagree to acquire any business, (I) enter into any transactioncorporation, other than the Mergerpartnership, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidationassociation, joint venture, tender offer, share exchange, business combination with, limited liability company or purchase other entity or division thereof involving the payment of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value consideration in excess of $50 100 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determinedwithout the written consent of EVI, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably which consent shall not be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementunreasonably withheld;
(Ev) recapitalizeincur any obligation for borrowed money or purchase money indebtedness, reorganize whether or completely not evidenced by a note, bond, debenture or partially liquidate Parent similar instrument, except for such borrowings that would not result in the total outstanding indebtedness of the Company and its subsidiaries on a consolidated basis being in excess of $300 million at any one time;
(vi) sell, lease, mortgage, pledge or gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or dispose of any of its properties or assets, except (A) sales or leases in the ordinary course of business consistent with past practice, (B) as may be
(vii) make any material election relating to Taxes or settle or compromise any material Tax liability;
(viii) except for those contemplated corporate transactions described in the Company Disclosure Letter, adopt a plan of complete or partial liquidation of the Company or Parent any of its significant subsidiaries or adopt resolutions providing for or authorizing any of the foregoingsuch a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(Gix) change any material accounting principle used by it, except as required by applicable Law or GAAPregulations promulgated by the SEC; or
(Hx) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 3 contracts
Sources: Merger Agreement (Evi Inc), Merger Agreement (Evi Inc), Merger Agreement (Weatherford Enterra Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure LetterAgreement), Parent the Company shall, and its Subsidiaries Seller shall cause the Company to, carry on their its businesses in the usual, regular regular, and ordinary course in substantially the same manner as conducted at the date of this Agreementhereof, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their its current business organizationsorganization, keep available the services of their its current officers and employees and preserve their its relationships with customers, suppliers, licensors, licensees, distributors distributors, and others having business dealings with Parent and its Subsidiariesthe Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure LetterAgreement, prior to the Effective Time Parent Closing Date the Companies will not, and its Subsidiaries shall Seller will not, without the prior written consent of Buyer, permit or allow the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):to:
(Ai) (IA) declare, set aside aside, or pay any dividends on, or make any other distributions (other than distributions to each Seller for amounts not exceeding their respective income tax liabilities) in respect of, any of its capital stock or stock, (IIB) split, combine combine, or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (C) purchase, redeem, or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(Bii) issue, deliver, grant, sell, pledge, dispose of of, or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock;
(iii) amend the Company Charter Document;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or any Parent Voting Debt (other than (I) by purchasing a substantial portion of the issuance of shares of Parent Common Stock upon the exercise of options stock, or other stock awards ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company, or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on, or otherwise encumber or dispose of any of its properties or assets, except (A) in the ordinary course of business consistent with past practice or (B) other transactions involving not in excess of $20,000.00 in the aggregate;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, and (2) indebtedness incurred to refund, refinance, or replace indebtedness for borrowed money outstanding on the date of this Agreementhereof, or (IIB) pursuant make any loans, advances or capital contributions to, or investments in, any other person, other than employees of the Company in the ordinary course of business consistent with past practice;
(vii) make or incur capital expenditures in the aggregate in excess of $20,000;
(viii) make any material election relating to existing Parent Stock Plans Taxes or settle or compromise any material Tax liability;
(ix) pay, discharge, or satisfy any claims, liabilities, or obligations (absolute, accrued, asserted or unasserted, contingent, or otherwise), other than the payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their current terms and past practice)of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet;
(Cx) amend Parent’s certificate of incorporation waive the benefits of, or bylaws agree to modify in any manner, any confidentiality, standstill or amend Merger Sub’s certificate of formation or limited liability company agreementsimilar agreement to which the Company is a party;
(Dxi) directly or indirectly, (I) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoingsuch a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization, or reorganization;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(Gxii) change any accounting principle used by it;
(xiii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid in settlement or compromise does not exceed $10,000.00;
(xiv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director, or employee, except as that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company benefit plan (other than amendments required by applicable Law law); (C) grant any increases in employee compensation, other than in the ordinary course or GAAPpursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus pa yments consistent with past practices); or (D) grant any stock options or stock awards; or
(Hxv) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (National Automation Services Inc), Stock Purchase Agreement (National Automation Services Inc)
Ordinary Course. During the period from the date of this Agreement to the earlier of the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure LetterMerger and the appointment or election of Sub's designees to the Company Board pursuant to Section 6.07 (such earlier time, the "Control Time"), Parent the Company shall, and shall cause its Subsidiaries shall subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent them to the end that their goodwill and its Subsidiaries, in each case consistent with past practiceongoing businesses shall be unimpaired at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth otherwise approved in Section 6.1(b)(i) writing by Parent, during the period from the date of the Parent Disclosure Letter, prior this Agreement to the Effective Time Parent and its Subsidiaries Control Time, the Company shall not, without the prior written consent of the Company (which consent and shall not be unreasonably withheld or conditioned (in each case from the point permit any of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):subsidiaries to:
(Ai) (IA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Parent Voting Debt (convertible securities, other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards Stock Options outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans Agreement in accordance with their current terms and past practice)present terms;
(Ciii) amend Parent’s its certificate of incorporation incorporation, by- laws or bylaws other comparable charter or amend Merger Sub’s certificate of formation or limited liability company agreementorganizational documents;
(Div) directly acquire or indirectlyagree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice and pursuant to existing agreements, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company;
(vii) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $250,000;
(viii) (A) grant to any officer of the Company or any of its subsidiaries any increase in compensation, except as was required under employment agreements in effect as of December 31, 1996, (IB) grant to any officer of the Company or any of its subsidiaries any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of December 31, 1996, (C) enter into any transactionemployment, severance or termination agreement with any officer of the Company or any of its subsidiaries or (D) amend any Benefit Plan in any respect;
(ix) make any change in accounting methods, principles or practices materially affecting the Company's assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles;
(x) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the Mergerpayment, that would require approval of the stockholders of Parent under applicable Law discharge, settlement or stock exchange rules; (II) enter into an agreementsatisfaction, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States ordinary course of business consistent with past practice or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementtheir terms;
(Exi) recapitalizeexcept in the ordinary course of business, reorganize modify, amend or completely terminate any Material Contract or partially liquidate Parent waive or adopt a plan of complete release or partial liquidation assign any material rights or Parent or adopt resolutions providing for or authorizing any of the foregoingclaims;
(Fxii) enter into make any new collective bargaining agreement involving unions in more than one state;
(G) change material tax election or settle or compromise any accounting principle used by it, except as required by applicable Law or GAAPmaterial income tax liability; or
(Hxiii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Stant Corp), Merger Agreement (Tomkins PLC)
Ordinary Course. During the period from the date of this --------------- Agreement to the earlier of the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure LetterMerger and the appointment or election of the Purchaser's designees to the Company Board pursuant to Section 1.3 (such earlier time, the "Control Time"), Parent the Company shall, and ------------ shall cause its Subsidiaries shall to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent them to the end that their goodwill and its Subsidiaries, in each case consistent with past practiceongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth otherwise approved in Section 6.1(b)(i) writing by Parent, during the period from the date of the Parent Disclosure Letter, prior this Agreement to the Effective Time Parent and its Subsidiaries Control Time, the Company shall not, without the prior written consent of the Company (which consent and shall not be unreasonably withheld or conditioned (in each case from the point permit any of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):Subsidiaries to:
(Ai) (IA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock stock, other than dividends and distributions by any direct or indirect wholly owned Subsidiary of the Company to its parent, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockstock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock (including shares issued and held in treasury), any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Parent Voting Debt (convertible securities, other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards Company Options outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans Agreement in accordance with their current terms and past practice)present terms;
(Ciii) amend Parent’s its certificate of incorporation incorporation, by-laws or bylaws other comparable charter or amend Merger Sub’s certificate of formation or limited liability company agreementorganizational documents;
(Div) directly acquire or indirectlyagree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except purchases of inventory in the ordinary course of business consistent with past practice;
(v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except sales of inventory in the ordinary course of business consistent with past practice;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice and pursuant to existing agreements not to exceed in the aggregate $250,000, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned Subsidiary of the Company except for travel advances and loans to employees in amounts not to exceed $10,000 in the aggregate;
(vii) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $250,000;
(viii) (A) grant to any officer of the Company or any of its Subsidiaries any increase in compensation, except as was required under employment agreements in effect as of December 31, 1996, (IB) grant to any officer of the Company or any of its Subsidiaries any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of December 31, 1996, (C) enter into any transactionemployment, severance or termination agreement with any officer of the Company or any of its Subsidiaries or (D) amend any benefit plan in any respect;
(ix) make any change in accounting methods, principles or practices materially affecting the Company's assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles;
(x) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the Mergerpayment, that would require approval of the stockholders of Parent under applicable Law discharge, settlement or stock exchange rules; (II) enter into an agreementsatisfaction, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States ordinary course of business consistent with past practice or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementtheir terms;
(Exi) recapitalizeexcept in the ordinary course of business, reorganize modify, amend or completely terminate any material Contract or partially liquidate Parent waive or adopt a plan of complete release or partial liquidation assign any material rights or Parent or adopt resolutions providing for or authorizing any of the foregoingclaims;
(Fxii) enter into make any new collective bargaining agreement involving unions in more than one state;
(G) change material tax election or settle or compromise any accounting principle used by it, except as required by applicable Law or GAAPmaterial income tax liability; or
(Hxiii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
Ordinary Course. During the period from From the date of this Agreement to hereof until the Effective Time (Closing, except as Buyer may, in its sole discretion, otherwise expressly provided agree in writing, or permitted by the terms of this Agreement or except as set forth in Section 6.1(b) of SCHEDULE 5.1, Seller shall cause the Parent Disclosure Letter), Parent Company and its Subsidiaries shall carry on Sub to conduct their businesses business in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and its Subsidiaries, in each case consistent with past practice. Without , and neither the Company nor Sub shall:
(a) borrow any sums or enter into any financial guarantees or otherwise incur any indebtedness, including for the payment of trade payables, other than in the ordinary course of business consistent with past practice; PROVIDED THAT neither the Company nor Sub shall have any obligation with respect to indebtedness for borrowed money or guarantees with respect thereto; or
(b) make or authorize any compensation increase for any employee of the Company or Sub whether such increase relates to base compensation, commissions, bonuses, or benefits, or otherwise unless such increase is consistent with the Company's prior practices with regard to such increases and Buyer consents to such increases, except that, as set forth in SCHEDULE 5.1(b), the Company shall, immediately prior to the Closing, pay (j) certain employees discretionary bonuses for fiscal 1997 in accordance with past practice the aggregate amount of which bonuses shall not exceed $300,000, (ii) amounts that shall become due and payable at the time of the Closing under those contracts set forth in SCHEDULE 3.13 hereto; and (iii) up to $250,000 for a one-time cash bonus for employees eligible for the Company's profit sharing plan, PROVIDED, that any payments made pursuant to this clause (iii) shall reduce the amount to be paid pursuant to Section 5.13; or
(c) except for the sale by the Company of inventory or work-in-process and in the ordinary course of business consistent with past practice, sell, assign, transfer, lease, mortgage, pledge or make or cause to become subject to any Claim, any of the assets of the Company or Sub; or
(d) enter into any agreement with respect to the Business pursuant to which the aggregate obligation of the Company and Sub subsequent to the date hereof may exceed $50,000 individually or in the aggregate, and which is not terminable by the Company without penalty upon 90 days' notice or less; or
(e) manage inventories and other supplies and parts other than in the ordinary course of business consistent with past practice; or
(f) issue or sell any shares of its capital stock of any class, or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe to, any shares of its capital stock of any class, nor make any commitment to issue or sell any such shares or securities; or
(g) except as may be disclosed on SCHEDULE 3.9, declare, pay or set aside for payment any dividend, distribution or return of capital in respect of its capital stock nor, directly or indirectly, redeem, purchase or otherwise acquire any shares of its capital stock; or
(h) settle or compromise any Tax liability; or
(i) without limiting the generality of the foregoing, and except as otherwise expressly provided take any action or permitted by this Agreement omit to take any action, which act or omission would result in a breach of any of the representations or warranties set forth in Section 6.1(b)(iclauses (a) through (j) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):
(A) (I) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Parent Voting Debt (other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice);
(C) amend Parent’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreement;
(D) directly or indirectly, (I) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(G) change any accounting principle used by it, except as required by applicable Law or GAAP3.23; or
(Hj) authorize otherwise enter into any of, or commit or agree to take any of, transaction not in the foregoing actionsordinary course of business.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hmi Industries Inc), Stock Purchase Agreement (Hmi Industries Inc)
Ordinary Course. During the period The Company covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement to until the earlier of the Effective Time (and termination of this Agreement, except as otherwise expressly provided or specifically permitted by the terms any other provision of this Agreement (or as set forth in Section 6.1(b) 5.1 of the Parent Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or any of its Subsidiaries or except with Parent’s prior written approval (not to be unreasonably withheld, conditioned or delayed), Parent the business of it and its Subsidiaries shall carry on their businesses be conducted in the usual, regular ordinary and ordinary usual course in substantially consistent with the same manner as conducted at the date of this Agreement, Company’s past practice and, to the extent consistent therewith, the Company and its Subsidiaries shall use their reasonable best efforts to (i) preserve intact their current business organizationsassets, (ii) keep available the services of their current officers and officers, key employees and consultants of the Company and each of its Subsidiaries, (iii) preserve their relationships the Company’s business organization intact and maintain its existing relations and goodwill with customers, suppliers, licensorsdistributors, licenseescreditors, distributors and others having business dealings lessors, and (iv) comply in all material respects with Parent and its Subsidiaries, in each case consistent with past practiceall applicable Laws. Without limiting the generality of the foregoing, and as an extension thereof, except as otherwise expressly provided or specifically permitted by any other provision of this Agreement (or as set forth in Section 6.1(b)(i) 5.1 of the Parent Company Disclosure Letter, prior ) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Effective Time Parent and Company, or the terms of any Contract binding upon the Company or any of its Subsidiaries Subsidiaries, the compliance with which shall not cause the Company to be in material non-compliance with this Section 5.1, the Company shall not, and shall not permit any of its Subsidiaries to, from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of the Company Parent (which consent shall not to be unreasonably withheld withheld, conditioned or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashiondelayed):
(Aa) (I) declare, set aside amend or pay any dividends on, propose to amend the articles of incorporation or make any bylaws or other distributions in respect of, comparable governing instruments of the Company or any of its capital stock or (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockSignificant Subsidiaries;
(Bb) issue, deliver, grant, sell, pledge, dispose of, grant, transfer or encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or otherwise encumber securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock of any class or any securities convertible intoEquity Interest, voting debt of the Company or any rightsof its Subsidiaries, warrants or options to acquire, any such capital stock, or any Parent Voting Debt (other than (I) the issuance of shares of Parent Common Stock upon the exercise of options Options or other stock awards the settlement of RSUs outstanding on as of the date of this Agreementhereof, or (II) pursuant to existing Parent Stock Plans in each case in accordance with their current the terms of the applicable Company Stock Plan and past practicerelated award agreements;
(c) other than pursuant to cash management or investment portfolio activities in the ordinary course of business, acquire (including by merger, consolidation, or acquisition of stock or assets or Intellectual Property or any other business combination) any ownership interest in any corporation, partnership, other business organization or any division thereof or any assets or interest in any assets from any other Person for consideration valued in excess of $500,000.00 individually or $1,000,000.00 in the aggregate (with the valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States));
(C) amend Parent’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreement;
(D) directly or indirectly, (Id) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidationstrategic licensing, joint venture, tender offercollaboration, share exchangealliance, business combination with, co-promotion or purchase of more than 20% of similar agreement that involves payments by the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value Company to third parties in excess of $50 million 200,000.00 individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million 500,000.00 in the aggregate for all such contracts, provided, that no such agreement would (determinedi) constitute a Company Material Contract, (ii) limit or restrict the Company or its Subsidiaries or the Parent or any of its Affiliates (including the Surviving Corporation) or any successor thereto, in each case, after the Effective Time, from engaging or competing in, or require any of them to work exclusively with the party to such agreement in, any material line of business or in accordance any material geographic area, other than any limitation or restriction which the Company shall have the right to terminate upon a change of control at no cost and with Section 801.10 no such continuing material restrictions or obligations to the Company or Parent or any of the regulations adopted under the HSR Act)their respective Subsidiaries; or (IIIiii) be reasonably expected to interfere with the parties’ ability to consummate the Mergers;
(e) (i) purchase financial instruments that at the time of purchase qualify as Level III assets (as defined in FASB 157); (ii) change in a material manner the average duration of the Company’s investment portfolio or the average credit quality of such portfolio, except for changes that would reduce investment risk in such portfolio; (iii) materially change investment guidelines with respect to the Company’s investment portfolio except for changes that would reduce investment risk of the Company’s investment portfolio; (iv) hypothecate, repo, encumber or otherwise pledge assets in the Company’s investment portfolio; or (v) invest new surplus cash from operations in securities other than short-term liquid securities permitted by Parent’s investment guidelines (which shall be implemented by the Company with respect to such new surplus cash as soon as practicable after the date hereof);
(f) enter into any interest rate swaps, foreign exchange or commodity agreements and other transaction or take any similar hedging arrangements other action that would reasonably be expected to than for purposes of offsetting a bona fide exposure (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreementincluding counterparty risk);
(Eg) recapitalize, reorganize merge or completely consolidate the Company or partially liquidate Parent any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for a complete or authorizing partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, other than any such transaction between or among direct or indirect wholly-owned Subsidiaries of the Company that would not result in material adverse tax consequences or material loss of tax benefits or loss of any material asset (including Intellectual Property);
(h) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any of its Subsidiaries to any third party, except (i) pursuant to existing Contracts or commitments, (ii) for the sale of goods and services in the ordinary course of business consistent with past practice, (iii) transactions involving property or assets of the Company or any of its Subsidiaries having a value no greater than $500,000.00 in the aggregate for all such transfers (with the valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States)), (iv) in connection with any waiver, release, assignment, settlement, compromise of litigation otherwise permitted under this Section 5.1, or (v) in connection with cash management or investment portfolio activities in the ordinary course of business;
(i) split, combine, reclassify, subdivide or amend the terms of its outstanding shares of capital stock or any other securities of the Company or enter into any agreement with respect to voting of any of its capital stock or any securities convertible into or exchangeable for such shares;
(j) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, in respect of the capital stock of the Company or any of its Subsidiaries, except between or among direct or indirect wholly-owned Subsidiaries of the Company;
(k) purchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase, redeem or otherwise acquire any shares of its capital stock, any securities convertible or exchangeable or exercisable for any shares of capital stock or any other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (i) required by the terms of the Company Stock Plans, (ii) in order to pay Taxes or satisfy withholding obligations in respect of such Taxes in connection with the exercise of Company Stock Options or vesting of RSUs or the lapse of restrictions in respect of any other Equity Interests in the Company, in each case pursuant to the terms of the Company Stock Plans, or (iii) required by the terms of any plans, arrangements or agreements existing on the date hereof and disclosed in Section 3.11(a) of the Company Disclosure Letter between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries;
(l) incur any indebtedness for borrowed money or issue any debt securities or warrants or other rights to acquire debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, as an accommodation or otherwise, the obligations of any other Person for borrowed money, in each case other than for borrowing under the Company’s existing working capital facilities and existing letter of credit facilities in the ordinary course;
(m) make any loans or capital contributions to, or investments in, any Person, except for (i) loans and capital contributions to, or investments in, Subsidiaries organized under the laws of one of the United States, (ii) with respect to Subsidiaries organized under the laws of a jurisdiction other than one of the United States (a “Foreign Subsidiary”), (a) loans or capital contributions to, or investments in, Foreign Subsidiaries which are made in the ordinary course of business for the normal business operations of each such Foreign Subsidiary, consistent with past practice, and (b) additional loans or capital contributions to, or investments in, Foreign Subsidiaries in an amount not to exceed $250,000.00 in the aggregate for all Foreign Subsidiaries (but excluding from the limitation in this clause (b) such loans or capital contributions to, or investments in, one Foreign Subsidiary made by another Foreign Subsidiary), (iii) cash management or investment portfolio activities in the ordinary course of business and consistently with the Company’s obligations under Section 5.1(e), and (iv) in connection with a transaction permitted under Section 5.1(c) or (d);
(n) make or agree to make any capital expenditures or commit to any capital projects in excess of $500,000.00 in the aggregate for all such capital expenditures and projects, other than the capital expenditures and capital projects described in Section 5.1(n) of the Company Disclosure Letter (it being understood that any excess over such amount attributable solely to foreign exchange fluctuation shall not be deemed to violate this clause);
(o) terminate, cancel, renew, or request or agree to any material amendment or material modification to, material change in, or material waiver under, any Company Material Contract, or enter into or materially amend any Contract that, if existing on the date hereof, would be a Company Material Contract (in each case, excluding the Company Material Contracts identified in Section 3.10(a)(ii) (except for any amendment that would expand the limitations or restrictions referenced therein));
(p) enter into an employment agreement or relationship with any Person who earns an annual rate of base salary of more than or equal to $150,000.00 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof);
(q) enter into, modify, amend or terminate any Contract or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (i) impair the ability of the Company to perform its obligations under this Agreement in any material respect or (ii) prevent or materially delay or impair the consummation of the Mergers and the other transactions contemplated by this Agreement;
(r) except as required pursuant to any Company Benefit Plans, Foreign Benefit Plans, Collective Bargaining Agreements, the terms of this Agreement or any applicable Law: (i) grant or provide, or adopt a plan or enter into any agreement or agreements intended to grant or provide, any retention, change in control, severance or termination payments or benefits to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, except for increases in base salary, in the ordinary course of business consistent with past practice for promoted employees who are not officers and whose new position fills a vacancy, that do not exceed three percent (3%), (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, or (vi) issue or forgive any loans to directors, officers, employees, contractors or any of their respective Affiliates except for any such issuance that would not violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and is consistent with past practice and policy;
(s) pre-pay any long-term indebtedness for borrowed money or change the terms or extend the maturity thereof (including providing cash cover under any letter of credit otherwise than as required to do so under such facility), other than borrowings under its existing working capital facilities;
(t) make any material change in its method of accounting or its accounting practices, policies or principles, unless required by Law, a Governmental Entity or GAAP, and neither the Company nor any of its Subsidiaries shall (i) change its fiscal year, (ii) make, change or revoke any material United States Tax election, or (iii) settle or compromise any Tax claim where the amount of cash to be paid to the relevant taxing authority upon such settlement or compromise of such claim exceeds $50,000.00 above any amount reserved for such claim in the latest Company Financial Statements;
(u) waive, release, assign, settle or compromise any claim the resolution of which (i) would involve the payment by the Company of an amount in excess of $1,000,000.00 in the aggregate or (ii) would involve the imposition of injunctive relief against the Company that would materially limit or restrict the business of Parent and its Subsidiaries (including the Surviving Corporation) following the Effective Time; or
(v) authorize or enter into an agreement to do any of the foregoing;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(G) change any accounting principle used by it, except as required by applicable Law or GAAP; or
(H) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Sykes Enterprises Inc), Merger Agreement (Ict Group Inc)
Ordinary Course. During (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 6.6(a) and except for the possible sale of the Company's paclitaxel business and assets, during the period from the date of this Agreement to the Effective Time Closing Date, (except as otherwise expressly provided or permitted by i) the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure Letter)Company shall conduct, Parent and it shall cause its Subsidiaries shall carry on to conduct, its or their businesses in the usual, regular and ordinary course in substantially and consistent with past practice, and the same manner as conducted at the date of this AgreementCompany shall, and, to the extent consistent therewithand it shall cause its Subsidiaries to, use its or their reasonable best commercial efforts to preserve intact their current its business organizationsorganization, to keep available the services of their current its officers and employees and preserve their to maintain satisfactory relationships with customers, suppliers, licensors, licensees, distributors all persons with whom it does business and others having business dealings with Parent and its Subsidiaries, in each case consistent with past practice. Without (ii) without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(b)(i) neither the Company nor any of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):will:
(A) (I) declare, set aside amend or pay propose to amend its Organizational Documents in any dividends on, or make any other distributions in respect of, any of its capital stock or (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stockmaterial respect;
(B) authorize for issuance, issue, deliver, grant, sell, pledge, dispose of or otherwise encumber propose to issue, grant, sell, pledge or dispose of any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, the capital stock or other securities of the Company or any of its Subsidiaries including, but not limited to, any securities convertible into or exchangeable for shares of stock of any class of the Company or any of its Subsidiaries, except for (a) the issuance of shares pursuant to the exercise of either incentive or non-qualified stock options, including management stock options outstanding the date of this Agreement in accordance with their present terms and (b) grants of options pursuant to the 1999 Incentive Plan or the Company's stock option plan for directors in effect as of the date hereof for attendance at meetings of the Board, on terms and in amounts consistent with past practice;
(C) split, combine or reclassify any shares of its capital stock or declare, pay or set aside any securities convertible intodividend or other distribution (whether in cash, stock or property or any rights, warrants or options to acquire, any such combination thereof) in respect of its capital stock, other than dividends or distributions to the Company or a Subsidiary of the Company, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any Parent Voting Debt shares of its capital stock or other securities;
(D) other than in the ordinary course of business consistent with past practice, (a) create, incur or assume any debt, except refinancings of existing obligations on terms that are no less favorable to the Company or its Subsidiaries than the existing terms; (b) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any Person; (c) make any capital expenditures or make any loans, advances or capital contributions to, or investments in, any other Person (other than to a Company Subsidiary and customary travel, relocation or business advances to employees); (Id) acquire the issuance stock or assets of, or merge or consolidate with, any other Person; (e) voluntarily incur any material liability or obligation (absolute, accrued, contingent or otherwise); or (f) sell, transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge or otherwise dispose of shares or encumber, any assets or properties, real, personal or mixed, material to the Company and its Subsidiaries taken as a whole other than to secure debt permitted under (a) of Parent Common Stock upon this clause (D); and
(E) maintain in full force and effect the exercise of options insurance described in Section 4.19 or other stock awards outstanding on comparable insurance.
(b) Except as expressly contemplated by this Agreement, during the period from the date of this AgreementAgreement to the Closing Date, (i) ZGNA shall cause the Contributed Subsidiaries to conduct their businesses in the ordinary course and consistent with past practice, and ZGNA shall cause the Contributed Subsidiaries to use their reasonable commercial efforts to preserve intact their business organization, to keep available the services of their officers and employees and to maintain satisfactory relationships with all persons with whom they do business, (ii) ZGNA will use its reasonable commercial efforts to maintain in place the sales force of ZBI whom will be subject to the Agreement Regarding Employees and (iii) without limiting the generality of the foregoing, none of the Contributed Subsidiaries will:
(A) amend or propose to amend its Organizational Documents in any material respect;
(B) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any shares of, or (II) pursuant any options, warrants, commitments, subscriptions or rights of any kind to existing Parent Stock Plans in accordance with their current terms and past practice)acquire or sell any shares of, the capital stock or other securities of the Contributed Subsidiaries including, but not limited to, any securities convertible into or exchangeable for shares of stock of any class of the Contributed Subsidiaries;
(C) amend Parent’s certificate split, combine or reclassify any shares of incorporation its capital stock or bylaws declare, pay or amend Merger Sub’s certificate set aside any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of formation its capital stock, other than dividends or limited liability company agreementdistributions to the other Contributed Subsidiaries, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any shares of its capital stock or other securities;
(D) directly other than in the ordinary course of business consistent with past practice, (a) create, incur or assume any debt, except refinancings of existing obligations on terms that are no less favorable to the Contributed Subsidiaries than the existing terms; (b) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any Person; (Ic) enter into make any transactioncapital expenditures or make any loans, advances or capital contributions to, or investments in, any other Person (other than customary travel, relocation or business advances to employees); (d) acquire the Mergerstock or assets of, that would require approval or merge or consolidate with, any other Person; (e) voluntarily incur any material liability or obligation (absolute, accrued, contingent or otherwise); or (f) sell, transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge or otherwise dispose of or encumber, any assets or properties, real, personal or mixed, material to the Contributed Subsidiaries taken as a whole other than to secure debt permitted under (a) of this clause (D); and
(E) maintain in full force and effect the insurance described in Section 5.19 or comparable insurance.
(c) Absent the prior written consent of ZGNA, during the two year period following consummation of the stockholders of Parent under applicable Law or stock exchange rules; Mergers, the Company agrees (IIi) enter into an agreement, other than this Agreement, relating to that it will not (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States liquidate Zuellig Botanical Extracts or (y) acquisitionsother than in the ordinary course of business, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of transfer more than 20% an insubstantial portion of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that Zuellig Botanical Extracts to the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) Company or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 an Affiliate of the regulations adopted under Company; (ii) the HSR Act); or (III) enter into any other transaction or Company shall take any other no action, and shall cause the Contributed Subsidiaries to take no action, if such action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate jeopardize the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any characterization of the foregoing;
(FMergers as reorganizations within the meaning of Section 368(a) enter into any new collective bargaining agreement involving unions in more than one state;
(G) change any accounting principle used by it, except as required by applicable Law or GAAP; or
(H) authorize any of, or commit or agree to take any of, of the foregoing actionsCode.
Appears in 2 contracts
Sources: Merger Agreement (Hauser Chemical Research Inc), Merger Agreement (Zuellig Group N a Inc)
Ordinary Course. During (i) In the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b) case of the Parent Disclosure Letter)Company, Parent the Company and each of its Subsidiaries shall conduct their respective businesses only in, and neither the Company nor any of such Subsidiaries shall take any action except in, the ordinary course consistent with past practice.
(ii) Without limiting the generality of the immediately preceding paragraph, (x) the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their all commercially reasonable best efforts to preserve intact in all material respects their current present business organizationsorganizations and reputation, to keep available the services of their current key officers and employees employees, to maintain their Assets and Properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with customers, suppliers, licensors, licensees, distributors customers and suppliers and others having significant business dealings with Parent them, to make all required payments under the Company Benefit Plans and its Subsidiaries, to comply in each case consistent all material respects with past practice. Without limiting the generality all Laws and Orders of the foregoingall Governmental or Regulatory Authorities applicable to them, and (y) the Company shall not, nor shall it permit any of its Subsidiaries to, except as otherwise expressly provided or permitted by for in this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):Agreement:
(A) amend or propose to amend its certificate or articles of incorporation or bylaws (Ior other comparable corporate charter documents);
(B) (w) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock or stock, except for the declaration and payment of dividends by a wholly-owned Subsidiary solely to its parent corporation, (IIx) split, combine combine, reclassify or reclassify take similar action with respect to any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Parent Voting Debt (other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice);
(C) amend Parent’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreement;
(D) directly or indirectly, (I) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing such liquidation or a dissolution, restructuring, recapitalization or other similar reorganization or (z) directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Option with respect thereto;
(C) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (x) the issuance of VTX Common Stock pursuant to Options outstanding on the date of this Agreement in accordance with their present terms, and (y) the issuance by a wholly-owned Subsidiary of its capital stock to its parent corporation), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto;
(D) except for the Acquisitions, acquire (by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the foregoingassets of, or by any other manner) any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of its business consistent with past practice which are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(E) other than in the ordinary course of its business consistent with past practice, sell, lease, grant any security interest in or otherwise dispose of or encumber any material amount of its Assets or Properties;
(F) enter into except to the extent required by applicable Law, regulation or GAAP, (x) permit any new collective bargaining agreement involving unions material change in more than one state(A) any pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy or (B) any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes or (y) make any material Tax election or settle or compromise any material income Tax Liability with any Governmental or Regulatory Authority;
(G) change incur any accounting principle used by itIndebtedness for borrowed money or guarantee any such Indebtedness, other than in the ordinary course of business consistent with past practice;
(H) except as may be required by applicable Law Law, enter into, adopt, amend in any material respect or GAAPterminate any Company Benefit Plan or other agreement, arrangement, plan or policy between the Company or one of its Subsidiaries and one or more of its directors, officers or employees, or, except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole, increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan or arrangement in effect as of the date hereof;
(I) enter into any Contract or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice or not on an arm's length basis, with any Affiliate of the Company or any of its Subsidiaries;
(J) make any capital expenditures or commitments for additions to plant, property or equipment constituting capital assets in the aggregate amount exceeding $25,000;
(K) make any change in the lines of business in which it participates or is engaged; or
(HL) authorize enter into any ofContract, commitment or commit arrangement to do or agree to take engage in any of, of the foregoing actionsforegoing.
Appears in 1 contract
Ordinary Course. During (i) In the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(b) case of the Parent Disclosure Letter)Company, Parent the Company and each of its Subsidiaries shall conduct their respective businesses only in, and neither the Company nor any of such Subsidiaries shall take any action except in, the ordinary course consistent with past practice.
(ii) Without limiting the generality of the immediately preceding paragraph, (x) the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their all commercially reasonable best efforts to preserve intact in all material respects their current present business organizationsorganizations and reputation, to keep available the services of their current key officers and employees employees, to maintain their Assets and Properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with customers, suppliers, licensors, licensees, distributors customers and suppliers and others having significant business dealings with Parent them, to make all required payments under the Company Benefit Plans and its Subsidiaries, to comply in each case consistent all material respects with past practice. Without limiting the generality all Laws and Orders of the foregoingall Governmental or Regulatory Authorities applicable to them, and (y) the Company shall not, nor shall it permit any of its Subsidiaries to, except as otherwise expressly provided or permitted by for in this Agreement or set forth in Section 6.1(b)(i) of the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its Subsidiaries, taken as a whole), and the Company shall respond to any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):Agreement:
(A) amend or propose to amend its certificate or articles of incorporation or bylaws (Ior other comparable corporate charter documents);
(B) (w) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock or stock, except for the declaration and payment of dividends by a wholly-owned Subsidiary solely to its parent corporation, (IIx) split, combine combine, reclassify or reclassify take similar action with respect to any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Parent Voting Debt (other than (I) the issuance of shares of Parent Common Stock upon the exercise of options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice);
(C) amend Parent’s certificate of incorporation or bylaws or amend Merger Sub’s certificate of formation or limited liability company agreement;
(D) directly or indirectly, (I) enter into any transaction, other than the Merger, that would require approval of the stockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, other than this Agreement, relating to (x) any acquisition, merger, consolidation, joint venture, tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company located in the United States or (y) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing such liquidation or a dissolution, restructuring, recapitalization or other similar reorganization or (z) directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Option with respect thereto;
(C) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any Option with respect thereto (other than (x) the issuance of VTX Common Stock pursuant to Options outstanding on the date of this Agreement in accordance with their present terms, and (y) the issuance by a wholly-owned Subsidiary of its capital stock to its parent corporation), or modify or amend any right of any holder of outstanding shares of capital stock or Options with respect thereto;
(D) except for the Acquisitions, acquire (by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the foregoingassets of, or by any other manner) any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of its business consistent with past practice which are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(E) other than in the ordinary course of its business consistent with past practice, sell, lease, grant any security interest in or otherwise dispose of or encumber any material amount of its Assets or Properties;
(F) enter into except to the extent required by applicable Law, regulation or GAAP, (x) permit any new collective bargaining agreement involving unions material change in more than one state(A) any pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy or (B) any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or Tax purposes or (y) make any material Tax election or settle or compromise any material income Tax Liability with any Governmental or Regulatory Authority;
(G) change incur any accounting principle used by itIndebtedness for borrowed money or guarantee any such Indebtedness, other than in the ordinary course of business consistent with past practice; 20
(H) except as may be required by applicable Law Law, enter into, adopt, amend in any material respect or GAAPterminate any Company Benefit Plan or other agreement, arrangement, plan or policy between the Company or one of its Subsidiaries and one or more of its directors, officers or employees, or, except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company and its Subsidiaries taken as a whole, increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan or arrangement in effect as of the date hereof;
(I) enter into any Contract or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice or not on an arm's length basis, with any Affiliate of the Company or any of its Subsidiaries;
(J) make any capital expenditures or commitments for additions to plant, property or equipment constituting capital assets in the aggregate amount exceeding $25,000;
(K) make any change in the lines of business in which it participates or is engaged; or
(HL) authorize enter into any ofContract, commitment or commit arrangement to do or agree to take engage in any of, of the foregoing actionsforegoing.
Appears in 1 contract
Ordinary Course. During Except as set forth in Schedule 5(A)(a), during the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by Closing Date, the terms of this Agreement or as set forth in Section 6.1(b) of the Parent Disclosure Letter), Parent Company shall and shall cause its Subsidiaries shall to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their commercially reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with Parent and its Subsidiariesthem, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth in Section 6.1(b)(i) of and the Parent Disclosure Letter, prior to the Effective Time Parent and its Subsidiaries shall notSchedules hereto, without the prior written consent of the Company (which consent shall not be unreasonably withheld or conditioned (in each case from the point of view of the operations of Parent and its SubsidiariesPurchaser, taken as a whole), and the Company shall respond to not, and shall not permit any request for consent pursuant to this Section 6.1(b) in a reasonably timely fashion):of its Subsidiaries to:
(Ai) (IA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock stock, other than dividends and distributions by any direct or indirect wholly owned Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities other than in connection with the exercise of outstanding stock options and warrants and satisfaction of withholding obligations under outstanding stock options and restricted stock;
(Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Parent Voting Debt (convertible securities other than (I) than, in the case of the Company, the issuance of shares of Parent Common Stock upon the exercise of stock options or other stock awards and warrants outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans Agreement in accordance with their current terms and past practice)terms;
(Ciii) amend Parent’s certificate its Articles of incorporation Incorporation, By-laws or bylaws other comparable charter or amend Merger Sub’s certificate of formation or limited liability company agreementorganizational document;
(Div) directly acquire or indirectlyagree to acquire (A) by merging or consolidating with, (I) enter into any transaction, other than the Merger, that would require approval or by purchasing a substantial portion of the stockholders of Parent under applicable Law stock or stock exchange rules; (II) enter into an agreementassets of, or by any other than this Agreementmanner, relating to (x) any acquisitionbusiness or any corporation, mergerpartnership, consolidationassociation, joint venture, tender offer, share exchange, business combination with, limited liability company or purchase of more than 20% of the equity securities other entity or consolidated total assets of any asset-based trucking company located in the United States division thereof or (yB) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total any assets of any other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determinedthat, in each case, would be material, individually or in accordance with Section 801.10 of the regulations adopted under aggregate, to the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be expected to (x) adversely affect Parent’s ability to use available funds to perform all of Company and its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement;
(E) recapitalize, reorganize or completely or partially liquidate Parent or adopt Subsidiaries taken as a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing;
(F) enter into any new collective bargaining agreement involving unions in more than one state;
(G) change any accounting principle used by itwhole, except as required by applicable Law or GAAP; or
(H) authorize any of, or commit or agree to take any of, purchases in the foregoing actions.ordinary course of business consistent with past practice;
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Crane James R)