Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not, and shall not permit any of its subsidiaries to: (i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) 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; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms); (iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents; (iv) acquire or agree to acquire (x) 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice; (A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations; (vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice; (viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000; (ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000; (x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund; (xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or (xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).
Appears in 1 contract
Sources: Merger Agreement (Lazard Freres Real Estate Investors LLC)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company VCAM shall, and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by ADP and VCAM that this Section 4.2(b) is a material covenant and ADP is relying on VCAM's compliance with the provisions of this covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, the Company shall not, and shall not permit neither VCAM nor any of its subsidiaries toSubsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (except dividends and distributions by any a direct or indirect wholly owned subsidiary Subsidiary of the Company VCAM to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company VCAM or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (1x) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of this Agreement the VCAM Disclosure Schedule and (y) issuances of up to 70,000 options to acquire shares of VCAM Common Stock at the then-current market price for VCAM Common Stock as of the time of the grant of any such options in accordance with their present the terms of The Vincam Group, Inc. 1996 Long Term Incentive Plan or The Vincam Group, Inc. 1998 Long Term Incentive Plan;
(iii) except as set forth on Section 4.2(b)(iii) of the VCAM Disclosure Schedule and with respect to annual bonuses made in the ordinary course of business consistent with past practice, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of VCAM or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of VCAM or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of VCAM or any of its Subsidiaries (2in each case, except with respect to employees (other than directors or officers) in the issuance ordinary course of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance business consistent with their termspast practice);
(iiiiv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganiza tion, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of VCAM;
(ivv) acquire or agree to acquire (xexcept as set forth on Section 4.2(b)(v) by merging or consolidating with, or by purchasing a substantial portion of the assets ofVCAM Disclosure Schedule, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real property) licenses of assets in the ordinary course of business consistent with past practice;
(viiivi) (yexcept as set forth on Section 4.2(b)(vi) of the VCAM Disclosure Schedule and except for borrowings under credit facilities or other agreements filed as exhibits to the VCAM SEC Documents, incur any indebtedness for borrowed money or guarantee any such indebtedness of another personDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company VCAM or any of its subsidiariesSubsidiaries, 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000Person, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company VCAM or any direct or indirect wholly owned subsidiary Subsidiary of VCAM;
(vii) change any accounting principle used by it, unless required by the Company, in SEC or the case Financial Accounting Standards Board;
(viii) enter into any transaction or series of clause transactions with any Affiliate of VCAM (yother than a wholly owned Subsidiary of VCAM) or (z) above otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to VCAM or such Subsidiary as would be obtainable by VCAM or such Subsidiary at the time of such transaction with a Person that is in not an amount which exceeds $50,000;Affiliate of VCAM; and
(ix) make enter into or agree to make amend, modify, supplement or waive any new capital expenditure material provision of any contract, agreement or expenditures which, individually, is in excess of $500,000 orarrangement with any client or potential client if, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of such contracts, agreements or arrangements as entered into or so amended, modified, supplemented or waived differ in any materially adverse respects from the Convertible Sub Notes terms set forth in the forms of client contracts attached to Section 4.2(b)(ix) of the VCAM Disclosure Schedule or the payment, discharge or satisfaction, would not otherwise be in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the CompanyVCAM's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)business.
Appears in 1 contract
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 specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the MergerCompany 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), the Company shall, business of it and its Subsidiaries shall cause its subsidiaries to, carry on their respective businesses be conducted in the usual, regular ordinary and ordinary usual course in substantially consistent with the same manner as heretofore conducted Company's past practice and, to the extent consistent therewith, the Company and its Subsidiaries shall use all 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 lessors, clinical trial investigators or managers of its clinical trials and others having business dealings (iv) comply in all material respects with themall applicable Laws. Without limiting the generality of the foregoing, during the period from the date and as an extension thereof, except as specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Effective Time Company, or the terms of any Contract binding upon the MergerCompany or any of its 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 Subsidiaries to:
(i) (x) declare, set aside from the date of this Agreement until the Effective Time, directly or pay any dividends onindirectly, do, or make any other distributions in respect ofagree to do, any of its capital stockthe following without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):
(a) amend or propose to amend the certificate of incorporation or bylaws or other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock comparable governing instruments 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 securitiesSignificant Subsidiaries;
(iib) issue, deliver, sell, pledge pledge, dispose of, grant, transfer or otherwise encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock, stock of any other voting securities class or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such sharesEquity Interest, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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 foregoingSubsidiaries, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters shares upon the exercise of credit) Company Convertible Preferred Stock, outstanding as of the date hereof, in an aggregate amount not to exceed $10,000,000accordance with its terms, or (z) make any loansthe exercise of Options or the settlement of DSUs or RSUs or MIP, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary outstanding as of the Companydate hereof, in the each case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under accordance with the terms of the Convertible Sub Notes applicable Company Stock Plan and related award agreements;
(c) other than pursuant to cash management or the payment, discharge or satisfaction, investment portfolio activities in the ordinary course of business consistent with past practice or in accordance with their termsbusiness, of liabilities reflected or reserved against inacquire (including by merger, consolidation, or contemplated byacquisition of stock or assets or Intellectual Property or any other business combination) any ownership interest in any corporation, the most recent consolidated financial statements (partnership, other business organization or the notes thereto) any division thereof or any assets or interest in any assets from any other Person for consideration valued in excess of the Company included $50 million individually or $200 million in the Filed SEC Documents or incurred in aggregate (with the ordinary course valuation of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it contingent consideration being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger determined in accordance with the "Change of Control" provisions of valuation methodology used by the IndentureCompany 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).);
Appears in 1 contract
Sources: Merger Agreement (Pfizer Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date (except as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the Company shall, and Sellers shall cause its subsidiaries the Company to, carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date hereof, and, to the extent consistent therewith, use all reasonable 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 and others having business dealings with themthe 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement Agreement, prior to the Effective Time of the Merger, Closing Date the Company shall will not, and shall not Sellers will not, without the prior written consent of Buyer, permit any of its subsidiaries or allow the Company to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 (zC) 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;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)capital stock;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsthe Company Charter Documents;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof thereof, or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a wholeCompany, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, g▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real propertyA) in the ordinary course of business consistent with past practicepractice or (B) other transactions involving not in excess of $100,000.00 in the aggregate;
(viiivi) (yA) 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 subsidiariesCompany, 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, other than any guarantee 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 debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) make any loans, advances or capital contributions to, or investments in, any other person, other than to employees of the Company or any direct or indirect wholly owned subsidiary of the Company, in the case ordinary course of clause (y) or (z) above is in an amount which exceeds $50,000business consistent with past practice;
(ixvii) make or agree to make any new incur capital expenditure or expenditures which, individually, is in the aggregate in excess of $500,000 or, in the aggregate, are in excess of $5,000,000400,000.00;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, terms of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements Company Balance Sheet;
(or the notes theretox) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactionnew collective bargaining agreement;
(xiii) change any accounting principle used by it, agreementexcept for changes conforming to regulations promulgated by the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or understanding employment agreement with V Corp. any officer, director or employee, except 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 its affiliatescurrent, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) 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 (D) grant any stock options or stock awards; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Natural Gas Services Group Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company Alliance shall, and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all reasonable its 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, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, the Company shall not, and shall not permit neither Alliance nor any of its subsidiaries toSubsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (except dividends and distributions by any a direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company Alliance to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company Alliance or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than (1) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options stock options or warrants outstanding on the date hereof or other agreements obligating Alliance to issue shares of this Agreement in accordance with their present terms and (2) the issuance of Alliance Common Stock and in each case listed in Section 3.1(c) of the Alliance Disclosure Schedule;
(iii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and associated Rightsexcept for the payment of contractual bonuses and other incentive bonus payments to certain executive officers of Alliance, such other payments not to exceed an aggregate of $9,250,000, payable in the manner agreed to in writing by Alliance and Metromedia, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option (other than the vesting of the Alliance Options or Warrants as provided for in Section 2.1(b)(iii) upon hereof) stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the exercise benefit or welfare of Convertible Sub Notes any director, officer or employee of Alliance or any of its Subsidiaries or increase in accordance any manner the compensation or fringe benefits of any director, officer or employee of Alliance or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of Alliance or any of its Subsidiaries (in each case, except with their termsrespect to employees in the ordinary course of business consistent with past practice);
(iiiiv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of Alliance;
(ivv) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets, except sales or licenses of assets in the ordinary course of business consistent with past practice;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company Alliance and its subsidiaries Subsidiaries taken as a whole, except for (A) purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except acquisitions disclosed prior to the extent required under any agreement date hereof to Metromedia in effect as of the date of the most recent financial statements included writing or in the Filed Alliance SEC Documents, or (C) enter into any employment, consulting, indemnification, severance acquisitions not exceeding $5,000,000 individually or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not 15,000,000 in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulationsaggregate;
(vii) sellexcept for borrowings and guarantees permitted under credit facilities filed as exhibits to the Alliance SEC Documents, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Alliance or any of its subsidiariesSubsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company Alliance or any direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company, Alliance in excess of $3,000,000 individually or $6,000,000 in the case of clause aggregate;
(yviii) change any accounting principle used by it, unless required by the SEC or (z) above is in an amount which exceeds $50,000;the Financial Accounting Standards Board; and
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement transaction or understanding series of transactions with V Corp. any Affiliate of Alliance (other than a wholly-owned Subsidiary of Alliance) or any otherwise that would be required to be disclosed pursuant to Item 404 of its affiliates; or
(xiii) authorize any of, Regulation S-K other than on terms and conditions substantially as favorable to Alliance or commit such Subsidiary as would be obtainable by Alliance or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes such Subsidiary at the election time of the holders thereof following the consummation such transaction with a Person that is not an Affiliate of the Merger in accordance with the "Change of Control" provisions of the Indenture)Alliance.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
Ordinary Course. During Except for transactions to which TWG is a party or as otherwise specifically contemplated by the period from the date terms of this Agreement to the Effective Time of the MergerAgreement, the Company shall, EqualNet shall and shall cause its subsidiaries to, Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company EqualNet shall not, and shall not permit any of its subsidiaries Subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary Subsidiary of the Company EqualNet to its parentEqualNet or to another direct or indirect wholly owned Subsidiary of EqualNet, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company EqualNet or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with the exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options and restricted stock;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of EqualNet, the issuance of EqualNet Common Stock (and associated Rights) Shares upon the exercise of Company Stock Options stock options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate Articles of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are that, in each case, would be material, individually or in the aggregate, to the Company EqualNet and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, grant a Security Interest in or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) leases in the ordinary course of business consistent with past practicepractice and (B) other immaterial transactions not in excess of $250,000 in the aggregate;
(viiivi) (yA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personPerson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company EqualNet or any of its subsidiariesSubsidiaries, guarantee any debt securities of another personPerson, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000business, or (zB) make any loans, advances or capital contributions to, or investments in, any other personPerson that would be material, individually or in the aggregate, to EqualNet and its Subsidiaries taken as a whole, other than by EqualNet to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000EqualNet;
(ixvii) make or agree to make incur any new capital expenditure or expenditures expenditure, which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other capital expenditures, are in excess of would exceed $5,000,000100,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundliability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company EqualNet included in the Filed SEC Commission Documents or incurred in the ordinary course of business consistent with past practice, or ;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company EqualNet or any of its subsidiaries Subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as part required by regulations promulgated by the Commission;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of the Transactions as contemplated by this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with TWG, and, with respect to any such settlement, with the prior written consent of TWG, which consent shall not be unreasonably withheld;
(xv) except for those contracts and agreements entered into in the ordinary course of business or with the prior written consent of TWG, which consent shall not be unreasonably withheld, enter into any transaction, joint venture or partnership contract or agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
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 Closing Date (except for transactions to which Purchaser or its affiliates are a party or as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the Company shall, shall and shall cause its subsidiaries to, Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise 7 12 expressly contemplated by this Agreement to and the Effective Time of the MergerSchedules hereto, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentthe Company or a wholly owned Subsidiary of the Company, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of shares of Common Stock (and associated Rights) upon the exercise of Company Stock Options stock options and warrants outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate Articles of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are that, in each case, would be material, individually or in the aggregate, to the Company and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) leases in the ordinary course of business consistent with past practicepractice and (B) other immaterial transactions not in excess of $250,000 in the aggregate;
(viiivi) (yA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personPerson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another personPerson, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000business, or (zB) make any loans, advances or capital contributions to, or investments in, any other personPerson that would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically required by the terms of this Agreement), the Company shall, shall and shall cause its subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, Governmental Entities, suppliers, insurers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly set forth in this Agreement, during the period from the date of this Agreement to the Effective Time of the Mergersuch period, the Company shall not, and shall not permit any of its subsidiaries to:
: (i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parentthe Company or a wholly-owned subsidiary of the Company, (yB) 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 (zC) 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;
; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into any such shares; or exchangeable forissue, deliver, sell or grant any rights, warrants or options to acquire, acquire any such shares, voting securities or convertible securities (other than (1) securities; or issue, deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into A-18 24 any agreement to do any of the foregoing, except for the issuance of Common Stock (and associated Rights) Shares upon the exercise of Company Stock Options Option Plan options or the Class B Warrants, or the conversion of the Convertible Debt, all as outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
; (iii) amend its certificate Certificate of incorporationIncorporation, byBy-laws or other comparable charter or organizational documents;
document; (iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
; (A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or of inventory (other than real property) in the ordinary course of business consistent with past practice;
; (viiivi) (yA) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (zB) 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, in the case of clause ; (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make incur any new capital expenditure or expenditures whichnot set forth in the Company's capital budget for fiscal 1995, individuallyor in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to Parent), is except for capital expenditures not in excess of $500,000 or, 50,000 as to any single item and $100,000 in the aggregate, are in excess of $5,000,000;
; (xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refund;
Tax liability; (xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or ; (x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
; (xi) terminate or amend in any material respect any contract or agreement material to the Company; (xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xiii) except as part of the Transactions as contemplated expressly permitted by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement disclosed in Section 3.1(u) of its affiliatesthe Disclosure Schedule; or
(xiiixiv) change any material accounting principle used by it, except insofar as any such change is required by generally accepted accounting principles or by the rules and regulations of the SEC; (xv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in A-19 25 settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent; (xvi) authorize any of, or commit or agree to take any of, the foregoing actions actions; or (it being understood and agreed that xvii) excluding inventory purchased for resale in the Company shall ordinary course of business, the company will not be deemed to have breached the foregoing covenant by virtue enter into any contracts or other material business obligations or commitments in excess of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)$100,000, or for a term longer than one year.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Tesoro Petroleum Corp /New/)
Ordinary Course. During the period from From the date of this Agreement to the Effective Time hereof, except as contemplated by and in furtherance of the MergerRestructuring, the Parents and Seller will cause the Company shall, and shall cause its the Company’s subsidiaries to, carry on to conduct their respective businesses business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall notin which it previously has been conducted, and not to (it being understood and agreed that the provisions hereof shall not permit any of be applicable to ▇▇▇▇, but will be applicable to NEG Holding and its subsidiaries to:subsidiaries):
(a) (i) acquire (xby merger, consolidation, acquisition of stock or assets or otherwise) declare, set aside or pay any dividends on, or make any other distributions in respect oforganize, any of its capital stockcorporation, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporationlimited liability company, partnership, joint venture, association trust or other entity or person or any business organization or division thereof or (yii) acquire any rights, assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (properties other than real property) in the ordinary course of business consistent with past practice;
(Ab) grant to amend or otherwise change the constituent or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any employee, officer other fashion the corporate structure or director ownership of the Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationsubsidiaries;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viic) sell, leasedivest, mortgage or otherwise encumber or subject to any Lien transfer or otherwise dispose of any assets or equity interests, except regular sales of properties or assets oil and gas sold from out of the Company ground or storage tanks or other inventories and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) supplies in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person; provided, issue or sell any debt securities or warrants or other rights to acquire any debt securities of that the Company may also sell, divest, transfer or any otherwise dispose 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, assets in the ordinary course of business consistent with past practice or not in accordance with their terms, excess in the aggregate of liabilities reflected or reserved against in$100,000, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred such other assets in the ordinary course of business consistent with past practice with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition shall be retained for the benefit of Buyer at Closing and shall not be counted towards the Cash Amount or Net Working Capital);
(d) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any lien (other than liens securing the Credit Facility and immaterial liens) on, any of the assets of the Company or its subsidiaries, except in the ordinary course of business in accordance with past practice;
(e) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any indebtedness for borrowed money or issue any debt securities or any warrants or rights to acquire any debt security (other than, with respect to the Company, in connection with the pending amendment to its bank facility), (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or waive (iv) make any loans, advances or enter into any other financing commitments, including without limitation, any financing commitments or obligations to Seller or any of its affiliates (other than the benefits Company or its subsidiaries);
(f) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001)(5) in respect of any of its equity interests; or
(g) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or agree to alter or modify in any mannerthe terms of rights or obligations under, any confidentialityequity interests, standstill or similar agreement any options, warrants, convertible or exchangeable securities or other rights of any kind to which acquire any equity interest or any other ownership interest of the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)subsidiaries.
Appears in 1 contract
Sources: Exclusivity Agreement and Letter of Intent (American Real Estate Partners L P)
Ordinary Course. During the period from the date of this Agreement to --------------- the Effective Time of the MergerMerger (except as otherwise specifically contemplated by the terms of this Agreement), the Company shall, TMW shall and shall cause each of its significant subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company TMW shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company TMW to its parentTMW or a subsidiary of TMW and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company TMW or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options, purchase of shares of TMW Common Stock to fund current requirements under employee benefit plans and except in connection with the Exchangeable Shares of ▇▇▇▇▇▇ Retail Group, Inc. ("MRG") and the Subscription Agreement between MRG and Golden Moores Finance Company;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of TMW, (other than (1A) the issuance of TMW Common Stock (and associated Rights) upon the exercise of Company Stock Options stock options outstanding on the date of this Agreement in accordance with their present terms and current terms, (2B) the issuance of a number of shares of TMW Common Stock, not to exceed 10% of the number of shares of TMW Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses, (C) pursuant to the existing bank credit agreements of TMW and associated Rightsits subsidiaries, or (D) upon in connection with the exercise Exchangeable Shares of Convertible Sub Notes in accordance with their terms)MRG or the Subscription Agreement;
(iii) amend its certificate TMW's Restated Articles of incorporation, by-laws or other comparable charter or organizational documentsIncorporation;
(iv) acquire or agree to acquire (x) by merging or consolidating withany business, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (y) any assets that are materialinvolving the payment of consideration, individually or in aggregate for all such acquisitions, in excess of $100 million without the aggregatewritten consent of the Company, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practicewhich consent shall not be unreasonably withheld;
(Av) grant to any employeeadopt a plan of complete or partial liquidation of TMW or resolutions providing for or authorizing such a liquidation or a dissolution, officer merger, consolidation, restructuring, recapitalization or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationreorganization;
(vi) make change any change in material accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Companyprinciple used by it, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of regulations promulgated by the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliatesSEC; or
(xiiivii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of Except as permitted or contemplated by this Agreement or as otherwise consented to the Effective Time of the Mergerby Buyer in writing, the Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, such consent not to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoingbe unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time of Closing, Seller will cause CRSI and the Merger, Subsidiaries to conduct the Company shall not, Business and their operations in the ordinary course consistent with past practices and shall not permit any of its subsidiaries CRSI or the Subsidiaries to:
(ia) (x) declare, set aside make or pay permit to be made any dividends on, change in their Certificates of Incorporation or make by-laws or issue any other distributions in respect of, any of its capital stock, bonds, other than dividends and distributions by any direct corporate securities or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) 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 rights to acquire any such shares or other securities;
(iib) classify, combine, split, subdivide or redeem or otherwise repurchase any of their capital stock or issue, deliver, sellpledge or encumber any capital stock or other securities equivalent to or exchangeable for capital stock 1481337 or, except as contemplated by the Distribution Agreement, declare or make any dividend or other distribution with respect to capital stock to Seller or any other of their shareholders or Affiliates of the Seller;
(c) mortgage, pledge or otherwise encumber any shares of its capital stock, subject to any other voting securities Lien any of their assets, tangible or intangible, except for Permitted Liens;
(d) sell, assign or transfer any securities convertible material assets of the Business, except in the ordinary course of business;
(e) sell, assign or transfer any material proprietary rights, except in the ordinary course of business;
(f) enter into any contract or exchangeable forcommitment or submit any proposal for a contract or commitment, or engage in any rightstransaction, warrants or options to acquire, any such shares, voting securities or convertible securities (involving an amount in excess of $500,000 other than in the ordinary course of business consistent with past practices; PROVIDED HOWEVER, that the Seller shall provide the Buyer with two days prior written notice of all contracts or commitments or proposals for contracts, commitments or potential transactions involving an amount in excess of $1,000,000 unless the giving of such notice shall materially and adversely affect the ability of CRSI or the Subsidiary to secure or submit such contract or commitment or proposal for contract, commitment or potential transaction (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes which case Seller shall give Buyer oral notice thereof as promptly as practicable but in accordance with their termsno event later than one day prior to securing or submitting such contract or commitment or proposal for contract, commitment or potential transaction);
(iiig) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsincrease compensation for employees except upon normal review consistent with past practices;
(ivh) make any material changes in personnel, except that CRSI or any Subsidiary may discharge any officer or employee notwithstanding that such discharge may result in a material change in personnel;
(i) fail to maintain existing insurance relating to their property and assets;
(j) acquire or agree to acquire (x) by merging merger, consolidation or consolidating with, purchase of capital stock or by purchasing a substantial material portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association entity;
(k) amend in any material respect Welfare Plans or other business organization or division thereof or Employee Plans; 1481337
(yl) any assets that are material, individually or enter into transactions with Affiliates having a total value in the aggregate, to the Company and its subsidiaries taken as a wholeexcess of $100,000, except purchases in conjunction with the procurement or provision of inventory (other than real property) routine administrative, accounting, payroll, cash management and legal services in the ordinary course of business consistent with past custom and practice;
(Am) grant to any employee, officer or director incur capital expenditures in excess of Company or any of its subsidiaries any increase in compensation, except amounts set forth in the ordinary course 1998 fiscal year capital expenditures budget, a copy of business consistent with prior practice or to the extent required under employment agreements in effect which is attached as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationSchedule 5.1(m);
(vin) make any change in accounting methods, principles delay or practices materially affecting postpone the reported consolidated assets, payment of accounts payable or other obligations and liabilities or results change the current policy and principles followed in the posting of operations of the Companyaccounts receivable, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past custom and practice;; or
(viii) (yo) incur any new 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, (other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, loans and 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, from Seller in the ordinary course of business and consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past custom and practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).
Appears in 1 contract
Ordinary Course. During the period Except as otherwise specifically provided in this Agreement or as otherwise consented to in writing by ▇▇▇▇▇▇ and Purchaser, from the date of this Agreement to the Effective Time of the MergerTime, the Company shallwill, and shall will cause each of its subsidiaries Subsidiaries to, carry on their respective businesses conduct its operations only in the usualordinary and usual course of business and consistent with past practices and will, regular and ordinary course in substantially the same manner as heretofore conducted andwill cause each of its Subsidiaries to, to the extent consistent therewithpreserve intact its present business organization, use take all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and its present officers, employees and consultants and preserve their its present relationships with licensors, licensees, customers, suppliers, licensorsemployees, licensees, distributors labor organizations and others having with whom they have a significant business dealings with themrelationship. Without limiting the generality of the foregoing, during and except as otherwise specifically provided in this Agreement or as set forth in Section 6.1 of the period Company Disclosure Letter, the Company will not, and will not permit any Subsidiary to, directly or indirectly, from the date of this Agreement to the Effective Time Time, without the prior written consent of ▇▇▇▇▇▇ and Purchaser: (a) propose or adopt any amendment to or otherwise change its Articles of Incorporation or Bylaws or other organizational documents; (b) authorize for issuance, sale, pledge, disposition or encumbrance, or issue, sell, pledge, dispose of or encumber (except pursuant to the exercise of Options under the Company Stock Option Plans or pursuant to options disclosed in Section 4.2 of the Merger, Company Disclosure Letter that are outstanding on the Company shall not, and shall not permit date hereof) any of its subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries other securities or any other securities thereof interest relating to or whose value is dependent on the value of any rights, warrants equity interest in the Company or options to acquire any such shares the Subsidiaries or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or issue any securities convertible into or exchangeable for, options, warrants to purchase, scrip, rights to subscribe for, calls or commitments of any character whatsoever relating to, or enter into any contract, understanding or arrangement with respect to the issuance of, any of its shares or any rightsof its other securities, warrants or options enter into any arrangement or contract with respect to acquirethe purchase or voting of shares of its shares, or adjust, split, reacquire, redeem, combine or reclassify any of its securities, or make any other changes in its capital structure; (c) (i) incur (contingently or otherwise) any liability or other obligation including, without limitation, any indebtedness for borrowed money except in the ordinary course of business or enter into any guarantee of any such sharesobligation of another person or mortgage, voting securities pledge or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);subject to any lien, charge or A-20
(iiii) amend its certificate of incorporation, by-laws grant any general increase in wage or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a wholesalary rates, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
; (Aii) grant make any change in the compensation payable or to any employee, officer or director of Company or become payable to any of its subsidiaries any increase in compensationofficers, except in the ordinary course of business consistent with prior practice directors, employees, agents or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, consultants; (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (Ciii) enter into or amend any employment, consulting, indemnificationseverance, severance termination or termination similar agreement with (except as contemplated by Section 7.7); (iv) adopt any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into new Plan or amend any existing Plan; (v) make any loans to any of its officers, directors, employees, agents or consultants or any changes in its existing borrowing or lending arrangements for or on behalf of any material respect any collective bargaining agreement of such persons, whether contingent on the Closing or Benefit Plan otherwise; or (Evi) except to the extent permitted by Section 3.1(b) hereof, take any action to accelerate cause to be exercisable any material rights or benefits, or otherwise unexercisable Option under the Company Stock Option Plans; (h) make any material determinations not changes in the ordinary course type or amount of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
its insurance coverages; (vii) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been material tax election (unless required by a change in GAAP law) or other applicable laws settle or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to compromise any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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 material income tax liability 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above Subsidiaries except if such action is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, taken in the ordinary course of business consistent and ▇▇▇▇▇▇ or its affiliate shall have been provided reasonable prior notice thereof. The Company shall consult with past practice ▇▇▇▇▇▇ or in accordance with their terms, of liabilities reflected its affiliate before filing or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) causing to be filed any material Tax Return of the Company included in or any of the Filed SEC Documents Subsidiaries or incurred before executing or causing to be executed any agreement or waiver extending the period for assessment or collection of any Taxes of the Company or any of its Subsidiaries; (j) cancel any debts or waive, release or relinquish any material contract rights or other material rights other than in the ordinary course of business and consistent with past practice, or waive the benefits of, ; (k) take or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed action that the Company shall not be deemed to have breached the foregoing covenant by virtue would result in any of the Company's obligation representations or warranties hereunder qualified as to repurchase materiality being untrue and any such representations and warranties that are not so qualified being untrue in any material respect; and (l) make, or commit to make, any capital expenditure in excess of $100,000 including, without limitation, for the Convertible Sub Notes at the election purchase of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)real estate.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the Company shall, shall and shall cause its subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date hereof, which are being undertaken in the ordinary course of business) and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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. Without limiting the generality of the foregoing, during the period from the date of and except as otherwise expressly contemplated by this Agreement and Section 4.1 of the Disclosure Schedule, prior to the Effective Time of the Merger, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parentthe Company or a wholly owned subsidiary of the Company, (yB) 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 (zC) 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;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its or its subsidiaries' capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of Common Stock (and associated Rights) Shares upon the exercise of Company Stock Options options and warrants outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate of incorporation, by-laws the Company Charter or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real propertyA) in the ordinary course of business consistent with past practicepractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(viiivi) (yA) 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, other than any guarantee except for borrowings under revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make incur any new capital expenditure or expenditures not included in the Company's approved capital expenditure budget for 2001, previously provided to Parent, which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other expenditures, are in excess of would exceed $5,000,0001,000,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, terms of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements Company Balance Sheet;
(or the notes theretox) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactionnew collective bargaining agreement;
(xiii) change any accounting principle used by it, agreementexcept as required by regulations promulgated by the SEC or the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $500,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or understanding employment agreement with V Corp. any officer, director or employee, except 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, or amend any existing, incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of its affiliatescurrent, former or retired employees (other than amendments required by law or to maintain the tax qualified status of such plans under the Code), (C) 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 (D) grant any stock options or stock awards; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
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 specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the MergerCompany 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), the Company shall, business of it and its Subsidiaries shall cause its subsidiaries to, carry on their respective businesses be conducted in the usual, regular ordinary and ordinary usual course in substantially consistent with the same manner as heretofore conducted Company’s past practice and, to the extent consistent therewith, the Company and its Subsidiaries shall use all 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 lessors, clinical trial investigators or managers of its clinical trials and others having business dealings (iv) comply in all material respects with themall applicable Laws. Without limiting the generality of the foregoing, during the period from the date and as an extension thereof, except as specifically permitted by any other provision of this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Effective Time Company, or the terms of any Contract binding upon the MergerCompany or any of its 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 Subsidiaries to:
(i) (x) declare, set aside from the date of this Agreement until the Effective Time, directly or pay any dividends onindirectly, do, or make any other distributions in respect ofagree to do, any of its capital stockthe following without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):
(a) amend or propose to amend the certificate of incorporation or bylaws or other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock comparable governing instruments 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 securitiesSignificant Subsidiaries;
(iib) issue, deliver, sell, pledge pledge, dispose of, grant, transfer or otherwise encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock, stock of any other voting securities class or any securities convertible into or exchangeable forEquity Interest, voting debt of the Company or any rightsof its Subsidiaries, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) shares upon the exercise of Company Stock Options Convertible Preferred Stock, outstanding on as of the date of this Agreement hereof, in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon its terms, or the exercise of Convertible Sub Notes Options or the settlement of DSUs or RSUs or MIP, outstanding as of the date hereof, in each case in accordance with their terms)the terms of the applicable Company Stock Plan and related award agreements;
(iiic) amend its certificate other than pursuant to cash management or investment portfolio activities in the ordinary course of incorporationbusiness, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) including by merging or consolidating withmerger, consolidation, or by purchasing a substantial portion acquisition of the stock or assets of, or by Intellectual Property or any other manner, business combination) any business or ownership interest in any corporation, partnership, joint venture, association or other business organization or any division thereof or (y) any assets that are material, or interest in any assets from any other Person for consideration valued in excess of $50 million individually or $200 million in the aggregateaggregate (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));
(d) enter into any strategic licensing, joint venture, collaboration, alliance, co-promotion or similar agreement for consideration valued in excess of $50 million individually or $200 million in the aggregate for all such contracts (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)), provided, that no such agreement would (i) 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 any material geographic area or, in the case of the pharmaceutical or animal health business, in the research, development, manufacture and commercialization of any antibody or therapeutic agent directed at a specific antigen or other target or product or in any therapeutic area, class of drugs or mechanism of action or modality, 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 no such continuing material restrictions or obligations to the Company and its subsidiaries taken or Parent or any of their respective Subsidiaries; or (iii) be reasonably expected to interfere with the parties’ ability to consummate the Merger;
(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 wholematerial manner the average duration of the Company’s investment portfolio or the average credit quality of such portfolio, except purchases 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 inventory 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 real propertyshort-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 interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(g) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or 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, 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;
, (Aiii) grant to any employee, officer transactions involving property or director assets of the Company or any of its subsidiaries Subsidiaries having a value no greater than $120 million in the aggregate for all such transfers (with the valuation of any increase contingent consideration being determined in compensationaccordance 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)), except (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 consistent with prior practice business;
(i) split, combine, reclassify, subdivide or to amend the extent required under employment agreements in effect as terms of its outstanding shares of capital stock or any other securities of the date 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 most recent financial statements included in capital stock of the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination paySubsidiaries, except to (i) the extent required under any agreement in effect as declaration and payment of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations regular quarterly cash dividends not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,0000.30 per share of Company Common Stock, except sales or inventory (other than real propertyii) the declaration and payment of regular quarterly cash dividends not in the ordinary course excess of business consistent $0.50 per share of Company Convertible Preferred Stock, in each case, with usual record and payment dates for such dividends in accordance with past practicedividend practice and (iii) between or among direct or indirect wholly-owned Subsidiaries of the Company;
(viiik) 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, including the Convertible Debentures and Company Convertible Preferred Stock, except for purchases, redemptions or other acquisitions of capital stock or other securities (yi) required by the terms of the Company Stock Plans or the Convertible Debenture Indenture, (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 DSUs 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, (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, or (iv) prepayment, repurchase or redemption of all or any portion of the Convertible Debentures for an amount less than or equal to par, plus any accrued and unpaid interest incurred up to the date on which such Convertible Debentures are prepaid, repurchased or redeemed;
(l) 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 subsidiariesSubsidiaries or assume, guarantee any debt securities of another personor endorse, enter into any "keep well" as an accommodation or other agreement to maintain any financial statement condition of another person or enter into any arrangement having otherwise, the economic effect obligations of any of the foregoingother Person for borrowed money, in each case other than any guarantee for borrowing under the Company’s existing working capital facilities and existing letter of indebtedness or debt securities of Elder Healthcare Developers, LLC credit facilities in the ordinary course;
(including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (zm) make any loans, advances or capital contributions to, or investments in, any other personPerson in amounts in excess of $50 million in the aggregate, other than to (i) cash management or investment portfolio activities in the Company or any direct or indirect wholly owned subsidiary ordinary course of business and consistently with the Company, in the case of clause (y’s obligations under Section 5.1(e) or (zii) above is in an amount which exceeds $50,000connection with a transaction permitted under Section 5.1(c) or (d);
(ixn) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or1.2 billion in the aggregate for all such capital expenditures (it being understood that any excess over such amount attributable solely to foreign exchange fluctuation shall not be deemed to violate this clause), or commit to any new capital projects in excess of $50 million individually and $100 million in the aggregate for all such capital expenditures that are not contemplated by the Company’s 2009 operating plan;
(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) (i) increase the number of employees of the Company and its Subsidiaries (“Company Employees”), based on the number of Company Employees employed as of the date hereof, other than with respect to (A) employees hired pursuant to offers of employment outstanding on the date hereof or to replace currently authorized key positions that are or may become vacant or (B) as reasonably determined by the Company in good faith, employees (up to a maximum of 500 people) based on essential business need, or (ii) enter into an employment agreement or relationship with any Person who earns an annual rate of base salary of more than or equal to $215,000 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof or with respect to newly hired employees filling positions that are reasonably and in good faith deemed by the Company to be essential, but in no event, in the aggregate, are in excess of $5,000,000to exceed 50 people);
(xq) make 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 tax election, amend any material tax return respect or settle (ii) prevent or compromise any material tax liability materially delay or refundimpair the consummation of the Merger and the other transactions contemplated by this Agreement;
(xir) payexcept as required pursuant to any Company Benefit Plans, discharge or satisfy any material claimsForeign Benefit Plans, liabilities or obligations (absoluteCollective Bargaining Agreements, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under 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 Convertible Sub Notes Company or any of its Subsidiaries, (ii) increase the paymentcompensation, discharge bonus or satisfactionpension, 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 (other than a vacancy created as a result of Project Impact), that do not exceed six percent (6%), on average, of the base salary increases of all those receiving such salary increases in the United States and Puerto Rico (and consistent with local promotional practices and applicable Law in jurisdictions outside the United States or Puerto Rico), (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 accordance with their termsany other way secure the payment, of liabilities reflected compensation or reserved against inbenefits 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 contemplated by(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 most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and is consistent with past practice, practice and policy; (s) pre-pay any long-term indebtedness for borrowed money or waive change the benefits of, terms or agree to modify in extend the maturity thereof (including providing cash cover under any manner, any confidentiality, standstill or similar agreement to which the Company or any letter of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).credit ot
Appears in 1 contract
Sources: Merger Agreement (Wyeth)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date (except as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the Company shall, and Sellers shall cause its subsidiaries the Company to, carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date hereof, and, to the extent consistent therewith, use all reasonable 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 and others having business dealings with themthe 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement Agreement, prior to the Effective Time of the Merger, Closing Date the Company shall will not, and shall not Sellers will not, without the prior written consent of Buyer, permit any of its subsidiaries or allow the Company to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 (zC) 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;
(ii) issue, deliver, sell, pledge pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)capital stock;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsthe Company Charter Documents;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof thereof, or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a wholeCompany, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, grant a Lien on or otherwise encumber or subject to any Lien or otherwise dispose of any of properties a▇▇ ▇▇ ▇▇▇ ▇▇▇perties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real propertyA) in the ordinary course of business consistent with past practicepractice or (B) other transactions involving not in excess of $100,000.00 in the aggregate;
(viiivi) (yA) 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 subsidiariesCompany, 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, other than any guarantee 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 debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) make any loans, advances or capital contributions to, or investments in, any other person, other than to employees of the Company or any direct or indirect wholly owned subsidiary of the Company, in the case ordinary course of clause (y) or (z) above is in an amount which exceeds $50,000business consistent with past practice;
(ixvii) make or agree to make any new incur capital expenditure or expenditures which, individually, is in the aggregate in excess of $500,000 or, in the aggregate, are in excess of $5,000,000400,000.00;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, terms of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements Company Balance Sheet;
(or the notes theretox) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactionnew collective bargaining agreement;
(xiii) change any accounting principle used by it, agreementexcept for changes conforming to regulations promulgated by the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer;
(xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or understanding employment agreement with V Corp. any officer, director or employee, except 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 its affiliatescurrent, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) 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 (D) grant any stock options or stock awards; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Natural Gas Services Group Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company shall, Proxima and its Subsidiaries shall cause its subsidiaries to, carry on conduct their respective businesses in only in, and Proxima and such Subsidiaries shall not take any action except in, the usual, regular and ordinary course in substantially the same manner as heretofore previously conducted andand in substantial compliance with all applicable Laws. Without limiting the generality of the foregoing, to the extent consistent therewith, (i) Proxima and its Subsidiaries shall use all reasonable efforts to preserve intact their current present business organizationsorganizations and reputation, to keep available the services of their current present 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 and others having business dealings relationships with them and to comply in all material respects with all Laws and Orders of all Governmental Entities applicable to them. Without limiting , and (ii) neither Proxima nor any of its Subsidiaries shall, except as expressly contemplated by this Agreement:
(1) Adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust plan or other arrangement for the generality benefit or welfare of any director, officer or employee of Proxima or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of Proxima or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of Proxima or any of its Subsidiaries;
(2) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person (other than in the ordinary course of business consistent with past practice) or issue or sell any debt securities or warrants or other rights to acquire any debt securities of Proxima 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, during or make any loans, advances or capital contributions to, or investments in, any other person;
(3) Expend funds for capital expenditures or research and development, other than in the period from the date ordinary course of this Agreement business consistent with past practices;
(4) Sell, lease, license, mortgage or otherwise encumber or subject to the Effective Time any Encumbrance or otherwise dispose of the Merger, the Company shall not, and shall not permit any of its subsidiaries to:properties or assets except for disposition of inventory or immaterial assets or the imposition of purchase money security interests on inventory or equipment, in either case, in the ordinary course of business consistent with past practice;
(i5) (x) declareDeclare, set aside or pay any dividends on, or declare or make any other distributions distribution in respect of, any of its capital stock (except for dividends paid by Subsidiaries to Proxima with respect to capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company Proxima or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii6) Authorize for issuance, issue, deliver, sellsell or agree to commit to issue, sell or deliver (whether through the issuance or granting of options or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (1) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Proxima U.S. Options and Proxima Norwegian Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their termshereof);
(iii7) amend Amend its certificate of incorporation, by-laws bylaws, articles of association or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of Proxima;
(iv) acquire 8) Acquire or agree to acquire (x) acquire, including, without limitation, by merging or consolidating with, or by purchasing a substantial equity interest in or 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practicethereof;
(A9) grant to Settle or compromise any employee, officer stockholder derivative or director other suits arising out of Company the transactions contemplated by this Agreement or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with other litigation (whether or not commenced prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included this Agreement) or settle, pay or compromise any claims not required to be paid, other than in the Filed SEC Documentsconsultation and cooperation with In Focus, (B) grant and, with respect to any employeesuch settlement, officer without the prior written consent of In Focus, which consent shall not be unreasonably withheld or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationdelayed;
(vi10) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make Make any material tax election, amend any material tax return Tax election or settle or compromise any material tax Tax liability (whether with respect to amount or refundtiming);
(xi11) payExcept in the ordinary course of business, discharge materially modify, amend or satisfy terminate any material Contract or waive or release or assign any material rights or claims, liabilities or obligations ;
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, i) Fail to pay in the ordinary course of business consistent with past practice any amount ("Payable") due, owing or payable to any trade creditor or supplier (other than amounts being disputed in accordance with their terms, of liabilities reflected good faith) or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes theretoii) of the Company included in the Filed SEC Documents or incurred other than in the ordinary course of business consistent with past practice, alter the terms or waive the benefits of, or agree to modify in scheduled payment dates of any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliatesPayable; or
(xiii13) authorize any of, or commit Take or agree to take any ofaction that would make any representation and warranty of Proxima contained in this Agreement inaccurate at, or as of any time prior to the foregoing actions (it Effective Date, or omit or agree to omit to take any action necessary and prudent to prevent any such representation or warranty from being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes inaccurate at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)any such time.
Appears in 1 contract
Sources: Business Combination Agreement (In Focus Systems Inc)
Ordinary Course. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time of the MergerTime, the Company and each of its Subsidiaries shall, and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner except as heretofore conducted and, otherwise expressly required by this Agreement or by applicable Legal Requirements or to the extent consistent therewiththat Parent shall otherwise consent in writing, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of conduct its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business and substantially consistent with past practice;
practice and in compliance, in all material respects, with all applicable Legal Requirements, (Aii) grant pay its Liabilities and Taxes when due, subject to good faith disputes with respect to any employeesuch Liabilities or Taxes, officer and pay or director of Company perform its other material obligations as paid or any of its subsidiaries any increase in compensation, except performed in the ordinary course of business consistent with prior practice or business, (iii) use commercially reasonable efforts to the extent required under employment agreements in effect as assure that each of its Contracts entered into after the date of this Agreement will not require the most recent financial statements included procurement of any consent, waiver or novation or provide for any material change in the Filed SEC Documentsobligations of any party hereto in connection with, or terminate as a result of the consummation of, the Merger, (iv) maintain each of its Leased Real Properties in accordance with the terms of the applicable lease in all material respects, (v) notify and give Parent the opportunity to participate in (but not conduct) the defense or settlement of any litigation to which the Company is a party, (vi) use commercially reasonable efforts consistent with past practices to (A) preserve intact its present business organization, (B) grant keep available the services of its present officers and other key Employees, (C) preserve its beneficial relationships with customers, vendors, suppliers, distributors, consultants, licensors, licensees and others with which it has business dealings, and (D) maintain in effect all of its Governmental Authorizations, (vii) shall pay in cash to any employee, officer or director the holders of shares of Company Preferred Stock the dividends that become payable on such shares prior to the Closing Date pursuant to Section 2(b) of the Certificates of Designations, and such payments shall be made on the terms, in the amounts (and no more than the amounts) and on the dates required by the Certificates of Designations (and for the avoidance of doubt, all dividends accrued at or prior to the Last Series A Dividend Payment Date or the Last Series B Dividend Payment Date, as applicable, shall be paid at or prior to such date, respectively), and (viii) consult with Parent, and keep Parent reasonably apprised, in good faith in conducting the defense of any legal proceedings made or brought by any of the current or former stockholders of the Company (on their own or on behalf of the Company) against the Company or its Board of Directors which arise out of or in connection with the Merger or any of the transactions contemplated by this Agreement), and not settle or compromise any such legal proceeding without the prior written consent of Parent, in its sole discretion, (A) to the extent that the Company, Parent or any of their respective subsidiaries is required to pay any amount in settlement or compromise, or (B) if such settlement or compromise would impose any obligation on Parent or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Answers CORP)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date (except as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the each Company shall, and Seller shall cause its subsidiaries each Company to, carry on their respective its businesses in the usual, regular regular, and ordinary course in substantially the same manner as heretofore conducted at the date hereof, and, to the extent consistent therewith, use all reasonable 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 with, customers, suppliers, licensors, licensees, distributors distributors, and others having business dealings with themthe 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement Agreement, prior to the Effective Time of Closing Date the Merger, the Company shall Companies will not, and shall not Seller will not, without the prior written consent of Buyer, permit any of its subsidiaries or allow the Companies to:
(i) (xA) declare, set aside aside, or pay any dividends on, or make any other distributions (other than distributions to the Seller for amounts not exceeding their respective income tax liabilities) in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 stock or (zC) purchase, redeem redeem, or otherwise acquire any shares of capital stock of the each 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;
(ii) issue, deliver, sell, pledge pledge, dispose of, or otherwise encumber any shares of its capital stock, any other voting securities stock or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)capital stock;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsthe Company Charter Document;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company, or other business organization entity or division thereof thereof, or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a wholeeach Company, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on, or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real propertyA) in the ordinary course of business consistent with past practicepractice or (B) other transactions involving not in excess of $20,000.00 in the aggregate;
(viiivi) (yA) 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 subsidiarieseach 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, other than any guarantee 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 debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) make any loans, advances or capital contributions to, or investments in, any other person, other than to the employees of each Company or any direct or indirect wholly owned subsidiary of the Company, in the case ordinary course of clause (y) or (z) above is in an amount which exceeds $50,000business consistent with past practice;
(ixvii) make or agree to make any new incur capital expenditure or expenditures which, individually, is in the aggregate in excess of $500,000 or, in the aggregate, are in excess of $5,000,00020,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge discharge, or satisfy any material claims, liabilities liabilities, or obligations (absolute, accrued, asserted or unasserted, contingent contingent, or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, terms of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements each Company Balance Sheet;
(or the notes theretox) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the each Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization, or reorganization;
(xii) except as part change any accounting principle used by it;
(xiii) settle or compromise any litigation (whether or not commenced prior to the date of the Transactions as contemplated by 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 transactionnew, agreementor amend any existing, severance agreement or arrangement, deferred compensation arrangement or understanding employment agreement with V Corp. any officer, director, or employee, except that, each Company may hire additional employees to the extent deemed by its management to be in the best interests of the relevant 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 its affiliatescurrent, former or retired employees or amend any existing Company benefit plan (other than amendments required by law); (C) 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 (D) grant any stock options or stock awards; or
(xiiixv) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Growing Systems, Inc.)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically contemplated by the terms of this Agreement or as described in the Company Disclosure Document), the Company shall, shall and shall cause its subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parentthe Company or a wholly owned subsidiary of the Company, (yB) 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 (zC) 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; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of Common Stock (and associated Rights) Shares upon the exercise of Company Stock Options options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms), purchase, redeem or otherwise acquire or agree to acquire any shares of capital stock or other securities of the Company or any of its subsidiaries;
(iii) amend any material term of any of its certificate outstanding securities;
(iv) amend its Certificate of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(ivv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(Avi) grant to form any employee, officer or director of joint venture with any other person under circumstances wherein the Company or any of and its subsidiaries would have any increase liability or obligation for a contribution to be evidenced by debt or equity of such venture in compensation, except in the ordinary course excess of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations100,000;
(vii) sell, lease, mortgage mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or of inventory (other than real property) in the ordinary course of business consistent with past practicepractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(viii) (yA) 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, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make incur any new capital expenditure or expenditures not included in the Company's approved capital expenditure budget for 1999, which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other expenditures, are in excess of would exceed $5,000,0001,000,000;
(x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material tax election, amend change in reserves for Tax items other than any material tax return or settle or compromise any material tax liability or refundchange in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or ;
(xii) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xiixiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xiv) enter into any new collective bargaining agreement;
(xv) change any material accounting principle used by it, except as part required by regulations promulgated by the SEC or the Financial Accounting Standards Board;
(xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the Transactions amount paid in settlement or compromise does not exceed $250,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xvii) make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiiixviii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Formation Agreement to the Effective Time Closing Date (except as otherwise specifically contemplated by the terms of the Mergerthis Formation Agreement), the Company shallWeat▇▇▇▇▇▇▇ ▇▇▇l cause each Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ity to, and shall cause its subsidiaries toeach Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ity will, carry on their respective businesses its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their its current business organizations, keep available the services of their its current officers and employees and preserve their its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themit, in each case consistent with past practice, to the end that its goodwill and ongoing business shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerFormation Agreement, the Company shall notno Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ity shall, and shall Weat▇▇▇▇▇▇▇ ▇▇▇ll not permit any of its subsidiaries Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ity to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stockequity securities or interests, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company WECC to its parentWECC or a wholly owned subsidiary of WECC, (yB) split, combine or reclassify any of its capital stock or other equity interests 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 stock, or (zC) purchase, redeem or otherwise acquire any shares equity securities or interests of capital stock of the Company or any of its subsidiaries Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ity or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities or interests;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stockstock or other equity interests, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, equity interests or securities, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)securities;
(iii) amend its certificate or articles of incorporationincorporation or similar charter documents, by-laws its bylaws or other comparable charter or organizational documentsits limited partnership agreement;
(iv) except for those contemplated transactions described on Schedule 4.1(a)(iv) attached hereto, acquire or agree to acquire (x) by merging or consolidating withany business, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (y) any assets that are material, involving the payment of consideration in excess of $1,000,000 individually or in the aggregateaggregate (with respect to all such transactions by all Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ities) without the written consent of GE Capital, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practicewhich consent shall not be unreasonably withheld;
(Av) grant to incur any employeeIndebtedness, officer whether or director of Company not evidenced by a note, bond, debenture or any of its subsidiaries any increase in compensationsimilar instrument, except for such borrowings that would be repaid in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationfull at Closing;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage mortgage, pledge or gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred leases in the ordinary course of business consistent with past practice, or waive (B) as may be required under Weat▇▇▇▇▇▇▇'▇ ▇▇▇dit and debt facilities, (C) with respect to purchase money security interests, and (D) other immaterial transactions not in excess of $1,000,000 in the benefits of, or agree aggregate (with respect to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a partyall such transactions by all Transferring Weat▇▇▇▇▇▇▇ ▇▇▇ities);
(xiivii) make any change in any election relating to Taxes or settle or compromise any Tax audit or controversy relating to any Weat▇▇▇▇▇▇▇ ▇▇▇ity or the Weat▇▇▇▇▇▇▇ ▇▇▇pression Business;
(viii) except for those transactions contemplated hereby, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(ix) change any material accounting principle used by it, except as part of the Transactions as contemplated required by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliatesregulations promulgated by GAAP; or
(xiiix) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Formation Agreement (Weatherford International Inc /New/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically contemplated by the terms of this Agreement), the Company shall, Parent shall and shall cause each of its significant subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themconducted. Without limiting the generality of the foregoing, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company Parent shall not, and shall not permit any of its significant subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly wholly-owned subsidiary of the Company Parent to its parentParent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities other than, in the case of Parent, (other than (1A) the issuance of Common Stock (and associated Rights) Parent Shares upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and current terms, or (2B) the issuance of Common Stock (and associated Rights) upon a number of Parent Shares, not to exceed 5% of the exercise Parent Shares currently outstanding, in connection with the acquisition of Convertible Sub Notes in accordance with their terms)assets or equity securities of other entities or businesses;
(iii) amend its certificate Certificate of incorporationIncorporation, byBy-laws laws, or other comparable charter or organizational documentsdocument;
(iv) acquire adopt a plan of complete or agree to acquire (x) by merging partial liquidation or consolidating withresolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practicereorganization;
(Av) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in change any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Planaccounting principle used by it, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting regulations promulgated by the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliatesSEC; or
(xiiivi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Merger Agreement (Bettis Corp /De/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically contemplated by the terms of this Agreement), the Company shall, shall and shall cause its subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date hereof (including the on-going expansion project at the Company's Mississippi gas storage operations (the "Gas Storage Expansion Project"), which is being undertaken in the ordinary course of business) and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly wholly-owned subsidiary of the Company to its parentthe Company or a wholly-owned subsidiary of the Company, (yB) 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 (zC) other than in 13 20 connection with the Senior Preferred Stock Redemption, 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of Common Stock (and associated Rights) Shares upon the exercise of Company options or conversion of Senior Preferred Stock Options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate of incorporationthe Company Charter, byBy-laws or other comparable charter or organizational documentsdocument;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or of inventory (other than real property) in the ordinary course of business consistent with past practice, (B) other transactions involving not in excess of $500,000 in the aggregate and (C) the creation of Liens in connection with working capital borrowings under revolving credit facilities incurred in accordance with Section 4.1(a)(vi);
(viiivi) (yA) 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 with respect to any of the foregoing, other than except for working capital borrowings under revolving credit facilities that are (1) incurred in the ordinary course of business, (2) on terms customary for facilities of this type and (3) prepayable without premium or penalty; provided the Company notifies Parent of the entering into of any guarantee such facilities and of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, any drawdowns made thereunder; or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make incur any new capital expenditure not included in the Company's approved capital expenditure budget for 1999 set forth as on Section 4.1(a)(vii) of the Company Disclosure Document or expenditures not in conjunction with the Gas Storage Expansion Project as contemplated by Section 4.1(a)(vii) of the Company Disclosure Document with respect to 1999, which, individuallysingly or in the aggregate with all other expenditures, is in excess of would exceed $500,000 or, in or enter into any material agreements or commitments with respect to capital expenditures without the aggregate, are in excess prior written consent of $5,000,000Parent (which consent shall not be unreasonably withheld);
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, ;
(x) release any party from or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactionnew collective bargaining agreement;
(xiii) change any material accounting principle used by it, agreementexcept as required by regulations promulgated by the SEC or the Financial Accounting Standards Board;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises in consultation and cooperation with Parent, arrangement and, with respect to any such settlement, with the prior written consent of Parent, such consent not to be unreasonably withheld;
(xv) enter into any forward sale or understanding hedging arrangements with V Corp. respect to natural gas transportation or storage or any of its affiliatesother products; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company VCAM shall, and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by ADP and VCAM that this Section 4.2(b) is a material covenant and ADP is relying on VCAM's compliance with the provisions of this covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, the Company shall not, and shall not permit neither VCAM nor any of its subsidiaries toSubsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (except dividends and distributions by any a direct or indirect wholly owned subsidiary Subsidiary of the Company VCAM to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company VCAM or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (1x) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of this Agreement the VCAM Disclosure Schedule and (y) issuances of up to 70,000 options to acquire shares of VCAM Common Stock at the then-current market price for VCAM Common Stock as of the time of the grant of any such options in accordance with their present the terms of The Vincam Group, Inc. 1996 Long Term Incentive Plan or The Vincam Group, Inc. 1998 Long Term Incentive Plan;
(iii) except as set forth on Section 4.2(b)(iii) of the VCAM Disclosure Schedule and with respect to annual bonuses made in the ordinary course of business consistent with past practice, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of VCAM or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of VCAM or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of VCAM or any of its Subsidiaries (2in each case, except with respect to employees (other than directors or officers) in the issuance ordinary course of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance business consistent with their termspast practice);
(iiiiv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of VCAM;
(ivv) acquire or agree to acquire (xexcept as set forth on Section 4.2(b)(v) by merging or consolidating with, or by purchasing a substantial portion of the assets ofVCAM Disclosure Schedule, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real property) licenses of assets in the ordinary course of business consistent with past practice;
(viiivi) (yexcept as set forth on Section 4.2(b)(vi) of the VCAM Disclosure Schedule and except for borrowings under credit facilities or other agreements filed as exhibits to the VCAM SEC Documents, incur any indebtedness for borrowed money or guarantee any such indebtedness of another personDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company VCAM or any of its subsidiariesSubsidiaries, 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000Person, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company VCAM or any direct or indirect wholly owned subsidiary Subsidiary of VCAM;
(vii) change any accounting principle used by it, unless required by the Company, in SEC or the case Financial Accounting Standards Board;
(viii) enter into any transaction or series of clause transactions with any Affiliate of VCAM (yother than a wholly owned Subsidiary of VCAM) or (z) above otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to VCAM or such Subsidiary as would be obtainable by VCAM or such Subsidiary at the time of such transaction with a Person that is in not an amount which exceeds $50,000;Affiliate of VCAM; and
(ix) make enter into or agree to make amend, modify, supplement or waive any new capital expenditure material provision of any contract, agreement or expenditures which, individually, is in excess of $500,000 orarrangement with any client or potential client if, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of such contracts, agreements or arrangements as entered into or so amended, modified, supplemented or waived differ in any materially adverse respects from the Convertible Sub Notes terms set forth in the forms of client contracts attached to Section 4.2(b)(ix) of the VCAM Disclosure Schedule or the payment, discharge or satisfaction, would not otherwise be in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the CompanyVCAM's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)business.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically required by the terms of this Agreement), the Company shall, Parent shall and shall cause its subsidiaries to, to carry on their its respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, Governmental Entities, suppliers, insurers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly set forth in this Agreement, during the period from the date of this Agreement to the Effective Time of the Mergersuch period, the Company Parent shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its their capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) split, combine or reclassify any of its their 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 their capital stock or (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company Parties or any of its their subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its their capital stock, any other voting securities or any securities convertible into any such shares; or exchangeable forissue, deliver, sell or grant any rights, warrants or options to acquire, acquire any such shares, voting securities or convertible securities (other than (1) securities; or issue, deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into any agreement to do any of the foregoing, except for the issuance of Common Stock (and associated Rights) Parent Shares upon the exercise of Company Stock the Parent Options or the Parent Warrants, all as outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate their Certificates or Articles of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company Parent and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or subject to any Lien or otherwise dispose of any of their properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or of inventory (other than real property) in the ordinary course of business consistent with past practice;
(viiivi) (yA) 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 Parties or any of its their 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make incur any new capital expenditure or expenditures whichnot set forth in the Parent's capital budget for fiscal 1998, individuallyor in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to the other Parties), is except for capital expenditures not in excess of $500,000 or, 5,000 as to any single item and $10,000 in the aggregate, are in excess of $5,000,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents Parent or incurred in the ordinary course of business consistent with past practice, or ;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company Parent or any of its subsidiaries is a party;
(xi) terminate or amend in any material respect any contract or agreement material to the Parent;
(xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xiii) except as part of the Transactions as contemplated expressly permitted by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement disclosed in Section 4.2(t) of its affiliates; orthe Disclosure Schedule;
(xiiixiv) change any material accounting principle used by the Parent, except insofar as any such change is required by generally accepted accounting principles or by the rules and regulations of the SEC;
(xv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with the Company, and, with respect to any such settlement, with the prior written consent of the Company;
(xvi) authorize any of, or commit or agree to take any of, the foregoing actions actions; or
(it being understood and agreed that xvii) excluding inventory purchased for resale in the Company shall ordinary course of business, the Parent will not be deemed to have breached the foregoing covenant by virtue enter into any contracts or other material business obligations or commitments in excess of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)$10,000, or for a term longer than one year.
Appears in 1 contract
Ordinary Course. During the period from the date Parent and each of this Agreement to the Effective Time of the Merger, the Company shallits Subsidiaries shall conduct their respective businesses only in, and shall cause its subsidiaries tonot take any action except in, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with thempast practice. Without limiting the generality of the foregoing Parent and its Subsidiaries shall use all commercially reasonable efforts to preserve intact in all material respects their present business organizations and reputation, to keep available the services of their key officers and 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 and suppliers and others having significant business dealings with them and to comply in all material respects with all laws and orders of all Governmental or Regulatory Authorities applicable to them. Notwithstanding the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company Parent shall not, and nor shall not it permit any of its subsidiaries Subsidiaries to, except as otherwise expressly provided for in this Agreement:
(iA) amend or propose to amend Parent's certificate or articles of incorporation or bylaws (or other comparable charter documents);
(B) settle any shareholder or derivative or class action claims arising out of or in connection with any of the transactions contemplated hereby;
(C) (xw) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock, other than except that Parent may continue the declaration and payment of regular quarterly cash dividends, in each case with usual record and payment dates for such dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parentin accordance with past dividend practice, (yx) 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 stock, (y) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or (z) purchasedirectly or indirectly redeem, redeem repurchase or otherwise acquire any shares of its 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(ivD) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial equity interest in or 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 (y) otherwise acquire or agree to acquire any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of its business consistent with past practice;
(AE) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except other than dispositions in the ordinary course of its business consistent with prior practice past practice, sell, lease, grant any security interest in or to the extent required under employment agreements in effect as otherwise dispose of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or encumber any of its subsidiaries any increase in severance assets or termination pay, properties;
(F) except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documentsby applicable law, (C) enter into any employment, consulting, indemnification, severance make or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in rescind any material respect any collective bargaining agreement or Benefit Plan or Tax election (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise unless required by applicable law or regulation;
(vi) make any change in accounting methods, principles necessary to preserve Parent's status as a REIT or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose status of any of properties or assets its Subsidiaries as a "qualified REIT subsidiary" under Section 856(i) of the Company and its subsidiaries having a fair market value in excess of $50,000Code, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in as the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures whichmay be), individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes or materially change any method of reporting income or deductions for federal income tax liability purposes from those employed in the preparation of its federal income tax return for the most recent completed taxable year except as may be required by the SEC, applicable law or refundGAAP;
(xiG) payenter into any Contract or amend or modify any existing Contract, discharge or satisfy engage in any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in new transaction outside the ordinary course of business consistent with past practice or in accordance not on an arm's length basis, with their terms, any affiliate of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company Parent or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. Subsidiaries or any of its affiliatessuch affiliate's Subsidiaries; or
(xiiiH) authorize enter into any ofContract, commitment or commit arrangement to do or agree to take engage in any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)foregoing.
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 Closing Date (except for transactions to which Purchaser or its affiliates are a party or as otherwise specifically contemplated by the terms of the Mergerthis Agreement), the Company shall, shall and shall cause its subsidiaries to, Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to and the Effective Time of the MergerSchedules hereto, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentthe Company or a wholly owned Subsidiary of the Company, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of shares of Common Stock (and associated Rights) upon the exercise of Company Stock Options stock options and warrants outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate Articles of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are that, in each case, would be material, individually or in the aggregate, to the Company and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, grant a Lien on or otherwise encumber or subject to any Lien or otherwise dispose encumb▇▇ ▇▇ ▇▇▇▇▇▇e of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) leases in the ordinary course of business consistent with past practicepractice and (B) other immaterial transactions not in excess of $250,000 in the aggregate;
(viiivi) (yA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personPerson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another personPerson, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000business, or (zB) make any loans, advances or capital contributions to, or investments in, any other personPerson that would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make incur any new capital expenditure or expenditures (other than purchases in the ordinary course of business), which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other expenditures, are in excess of would exceed $5,000,000100,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Commission Documents or incurred in the ordinary course of business consistent with past practice, or ;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries Subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as part required by regulations promulgated by the Commission or as mandated by AICPA or similar accounting boards or bodies;
(xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with the Purchaser, and, with respect to any such settlement, with the prior written consent of the Transactions as contemplated by this AgreementPurchaser, which shall not be unreasonably withheld or delayed;
(xv) except for those contracts and agreements entered into in the ordinary course of business with the consent of the Purchaser, which consent shall not be unreasonably withheld or delayed, enter into any transaction, joint venture or partnership contract or agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerMerger (except as otherwise specifically contemplated by the terms of this Agreement or as described in the Company Disclosure Document), the Company shall, shall and shall cause its subsidiaries to, to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parentthe Company or a wholly owned subsidiary of the Company, (yB) 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 (zC) 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; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of the Company, the issuance of Common Stock (and associated Rights) Shares upon the exercise of Company Stock Options options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms), purchase, redeem or otherwise acquire or agree to acquire any shares of capital stock or other securities of the Company or any of its subsidiaries;
(iii) amend any material term of any of its certificate outstanding securities;
(iv) amend its Certificate of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument;
(ivv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are would be material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of supplies and inventory (other than real property) in the ordinary course of business consistent with past practice;
(Avi) grant to form any employee, officer or director of joint venture with any other person under circumstances wherein the Company or any of and its subsidiaries would have any increase liability or obligation for a contribution to be evidenced by debt or equity of such venture in compensation, except in the ordinary course excess of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations100,000;
(vii) sell, lease, mortgage mortgage, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or of inventory (other than real property) in the ordinary course of business consistent with past practicepractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate;
(viii) (yA) 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, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or debt securities of Elder Healthcare Developers, LLC (including through replace indebtedness for borrowed money outstanding on the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000date hereof, or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make incur any new capital expenditure or expenditures not included in the Company's approved capital expenditure budget for 1999, which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other expenditures, are in excess of would exceed $5,000,0001,000,000;
(x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material tax election, amend change in reserves for Tax items other than any material tax return or settle or compromise any material tax liability or refundchange in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or ;
(xii) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xiixiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xiv) enter into any new collective bargaining agreement;
(xv) change any material accounting principle used by it, except as part required by regulations promulgated by the SEC or the Financial Accounting Standards Board;
(xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the Transactions amount paid in settlement or compromise does not exceed $250,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent;
(xvii) make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiiixviii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Merger Agreement (Emersub Lxxiv Inc)
Ordinary Course. During the period from the date of this Agreement to the Effective Time Closing Date, Holdings and FDESI covenant that FDESI and Holdings (with respect to the business of the Merger, the Company shall, and FDESI) shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall, in all material respects, be 44 unimpaired at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the MergerClosing Date, the Company FDESI shall not, and shall not permit any of its subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries FDESI or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)securities;
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsdocuments or reincorporate in any jurisdiction;
(iv) acquire or agree to acquire (x) 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 thereof, except for such actions undertaken in the ordinary course of business and consistent with past practice and involving no more than $250,000 in the aggregate or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practiceFDESI;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of, any of any its properties or assets, except sales of properties or assets no longer used by FDESI in the conduct of the Company its business and its subsidiaries having a fair market value in excess sales of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viiivi) (y) incur any indebtedness Indebtedness for borrowed money or guarantee any such indebtedness 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 subsidiariesFDESI, 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, other than any guarantee except for short-term borrowing on an inter-company basis not in excess of indebtedness or debt securities $1,000,000 in the aggregate incurred in the ordinary course of Elder Healthcare Developersbusiness consistent with past practice, LLC (including through the issuance endorsement of letters checks in the normal course of credit) business and the extension of credit in an aggregate amount not to exceed $10,000,000, the normal course of business or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000FDESI;
(ixvii) make or agree to make any new capital expenditure expenditures or expenditures commitments, purchases of property or acquisitions of other businesses, capital assets or properties which, individually, is in excess of $500,000 50,000 or, in the aggregate, are in excess of $5,000,000250,000 or enter into any new real property lease;
(xviii) make any material tax election, amend any material tax return Tax election (other than in the ordinary course of preparing and filing its Tax returns) or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of or liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company FDESI included in the Filed SEC Documents FDESI Disclosure Letter or incurred after the date of such financial statements in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill confidentiality or similar agreement to which the Company or any of its subsidiaries FDESI is a party;
(x) adopt any shareholder rights or similar plan or take any other action with the intention of, or which may have the effect of, discriminating against the Company as a shareholder of FDESI (or any successor);
(xi) adopt or amend in any material respect any Plan;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactioncontract, agreement, plan or arrangement covering any director, officer or understanding with V Corp. employee providing for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the consummation of its affiliatesthe transactions contemplated hereby or by the Option Agreement or any acquisition by the Company of securities of FDESI (whether by merger, tender offer, private or market purchases or otherwise) or (B) the termination of employment after the occurrence of any such contingency if such payment, acceleration of entitlement would not have been provided but for such contingency; oror amend any existing contract, agreement, plan or arrangement to so provide.
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Formation Agreement to the Effective Time Closing Date (except as otherwise specifically contemplated by the terms of the Mergerthis Formation Agreement), the Company shallGE Capital will cause Global to, and shall cause its subsidiaries toGlobal will, carry on their respective businesses its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their its current business organizations, keep available the services of their its current officers and employees and preserve their its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themit, in each case consistent with past practice, to the end that its goodwill and ongoing business shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of and except as otherwise expressly contemplated by this Agreement to the Effective Time of the MergerFormation Agreement, the Company Global shall not, and GE Capital shall not permit any of its subsidiaries Global to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Global or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms)securities;
(iii) amend its certificate Certificate of incorporation, byIncorporation or By-laws or other comparable charter or organizational documentslaws;
(iv) except for those contemplated transactions described on Schedule 4.2(a)(iv) attached hereto, acquire or agree to acquire (x) by merging or consolidating withany business, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (y) any assets that are materialinvolving the payment of consideration in excess of $1,000,000, individually or in the aggregate, to without the Company and its subsidiaries taken as a wholewritten consent of Weat▇▇▇▇▇▇▇, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice▇▇ich consent shall not be unreasonably withheld;
(Av) grant to incur any employeeIndebtedness, officer whether or director of Company not evidenced by a note, bond, debenture or any of its subsidiaries any increase in compensationsimilar instrument, except for such borrowings that would be repaid in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationfull at Closing;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage mortgage, pledge or gran▇ ▇ ▇▇▇▇ ▇▇ or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred leases in the ordinary course of business consistent with past practice, (B) as may be required under Global's existing credit or waive debt facilities, (C) with respect to purchase money security interests, and (D) other transactions not in excess of $1,000,000 in the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a partyaggregate;
(xiivii) make any change in any election relating to Taxes or settle or compromise any Tax audit or controversy relating to Global or the Global Compression Business;
(viii) except for those contemplated corporate transactions described on Schedule 4.2(a)(viii) attached hereto, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(ix) change any material accounting principle used by it, except as part of the Transactions as contemplated required by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliatesGAAP; or
(xiiix) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Sources: Formation Agreement (Weatherford International Inc /New/)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company shall, and Adatom shall cause its subsidiaries to, carry on their respective its businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted andand use its commercially reasonable, to the extent consistent therewith, use all reasonable good faith efforts to preserve intact their its current business organizations, keep available the services of their its current officers and employees and preserve their its relationships with material customers, suppliers, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themit to the end that its goodwill and ongoing business shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of and except as contemplated by this Agreement to the Effective Time of the MergerAgreement, the Company or as otherwise required by law, Adatom shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 stock, or (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Adatom or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) except as contemplated by this Agreement or the Transaction Documents, authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than (1A) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date hereof and listed in Section 5.1(b) of this Agreement the Adatom Disclosure Schedule; (B) the securities contemplated to be issued by Adatom pursuant the terms of that certain engagement letter (the "Adatom Engagement Letter"), dated April 27, 1999, between Adatom and Jesup & ▇▇▇▇▇▇, a copy of which is attached hereto as Exhibit B, (C) to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), the President of Adatom, or an ▇▇▇ of ▇▇▇▇▇▇, securities of Adatom in accordance connection with their present terms the discharge of Adatom's existing indebtedness to ▇▇▇▇▇▇ (the "Shareholder Indebtedness"), (D) to the Brokers pursuant to contracts between the Brokers and Adatom, and (2E) to Polan under the issuance terms of Common Stock the Letter Agreement (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their termsas hereinafter defined);
(iii) except with respect to bonuses made in the ordinary course of business consistent with past practice, and except as contemplated by this Agreement, adopt or amend its certificate of incorporationin any material respect any bonus, by-laws profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other comparable charter employee benefit agreement, trust, plan or organizational documentsother arrangement for the benefit or welfare of any director, officer or employee of Adatom or increase in any manner the compensation or fringe benefits of any director, officer or employee of Adatom or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of Adatom (in each case, except with respect to employees in the ordinary course of business consistent with past practice);
(iv) amend its Articles of Incorporation, By-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure of Adatom;
(v) sell, lease, license, mortgage or otherwise encumber (except to secure the incurrence of Debt permitted hereunder) or subject to any Lien or otherwise dispose of any of its material properties or assets;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries Adatom taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to incur any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value Debt in excess of Seven Hundred Fifty Thousand ($50,000750,000) Dollars (inclusive of Debt incurred in connection with the Jesup Convertible Notes), except sales or inventory (other than real property) in exclusive of the ordinary course sums loaned to Adatom by HealthCore pursuant to the terms of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personthe Note, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Adatom other than as contemplated in the Company Adatom Engagement Letter, or any permitted in accordance with the terms of its subsidiariesthis Agreement, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to Adatom;
(viii) change any accounting principle used by it, unless required by the Company or any direct or indirect wholly owned subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;Financial Accounting Standards Board; and
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this Agreementset forth in Section 6.1(b)(ii) hereof, enter into any transaction, agreement, arrangement transaction or understanding series of transactions with V Corp. or any Affiliate of its affiliates; or
(xiii) authorize any of, or commit or agree Adatom other than on terms and conditions substantially as favorable to take any of, the foregoing actions (it being understood and agreed that the Company shall not Adatom as would be deemed to have breached the foregoing covenant obtainable by virtue of the Company's obligation to repurchase the Convertible Sub Notes Adatom at the election time of the holders thereof following the consummation such transaction with a Person that is not an Affiliate of the Merger in accordance with the "Change of Control" provisions of the Indenture)Adatom.
Appears in 1 contract
Sources: Merger Agreement (Healthcore Medical Solutions Inc)
Ordinary Course. During the -------------------- ---------------- period from the date of this Agreement to the Effective Time of the Merger, the Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 (z) 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) 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 (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
; (xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture).
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the MergerClosing Date, the Company shall, shall and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall, in all material respects, be unimpaired at the Closing Date. Without Except for the matters listed in Section 5.1 of the Company Disclosure Letter, without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the MergerClosing Date, the Company shall not, and shall not permit any of its subsidiaries Subsidiaries, without the prior written consent of Holdings, to:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent, (y) split, combine or reclassify any of an 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1x) the issuance of Common Stock (and associated Rights) upon the exercise of Company Employee Stock Options and Director Stock Options outstanding on the date of this Agreement in accordance with their present terms terms, and (2y) the issuance of Common Stock (and associated Rights) upon pursuant to the exercise of Convertible Sub Notes in accordance with their termsOption Agreement);
(iii) amend its certificate of incorporation, by-laws or other comparable charter or organizational documentsdocuments or reincorporate in any jurisdiction;
(iv) acquire or agree to acquire (x) 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 thereof, except for such actions undertaken in the ordinary course of business and consistent with past practice and involving no more than $250,000 in the aggregate or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of, any of any its properties or assets, except sales of properties or assets of no longer used by the Company and or its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) Subsidiaries in the ordinary conduct of its business and sales of inventory in the ordina course of business consistent with past practice;
(viiivi) (y) incur any indebtedness Indebtedness for borrowed money or guarantee any such indebtedness 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 subsidiariesSubsidiaries, 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, other than any guarantee except for short-term borrowing not in excess of indebtedness or debt securities $1,000,000 in the aggregate incurred in the ordinary course of Elder Healthcare Developersbusiness consistent with past practice, LLC (including through the issuance endorsement of letters checks in the normal course of credit) business and the extension of credit in an aggregate amount not to exceed $10,000,000, the normal course of business or (z) 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 Subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make any new capital expenditure expenditures or expenditures commitments, purchases of property or acquisitions of other businesses, capital assets or properties which, individually, is in excess of $500,000 250,000 or, in the aggregate, are in excess of $5,000,0001,000,000 or enter into any new real property lease with an annual rental of more than $60,000;
(xviii) make any material tax election, amend any material tax return Tax election (other than in the ordinary course of preparing and filing its Tax returns) or settle or compromise any material tax liability or refundTax liability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of or liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents Reports or incurred after the date of such financial statements in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill confidentiality or similar agreement to which the Company or any of its subsidiaries Subsidiaries is a party;
(x) adopt any shareholder rights or similar plan or take any other action with the intention of, or which may have the effect of, discriminating against Holdings as a shareholder of the Company (or any successor);
(xi) adopt or amend in any material respect any Plan;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transactioncontract, agreement, plan or arrangement covering any director, officer or understanding with V Corp. employee providing for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the consummation of its affiliatesthe transactions contemplated hereby or by the Option Agreement or any acquisition by Holdings of securities of the Company (whether by merger, tender offer, private or market purchases or otherwise) or (B) the 39 termination of employment after the occurrence of any such contingency if such payment, acceleration of entitlement would not have been provided but for such contingency; or amend any existing contract, agreement, plan or arrangement to so provide; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the The Company shall, and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all reasonable its 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, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, neither the Company shall not, and shall not permit nor any of its subsidiaries toSubsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (except dividends and distributions by any a direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option Agreement dated as of April 13, 1993 by and among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than (1) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date hereof and listed in Section 3.1(c) of the Company Disclosure Schedule;
(iii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and except as contemplated by this Agreement Agreement, adopt or amend in accordance any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of the Company or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its Subsidiaries (in each case, except with their present terms and (2) respect to employees in the issuance ordinary course of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance business consistent with their termspast practice);
(iiiiv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of the Company;
(ivv) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject except for borrowings permitted under credit facilities filed as exhibits to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000SEC Documents, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company or any direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company;
(viii) change any accounting principle used by it, in unless required by the case of clause (y) SEC or (z) above is in an amount which exceeds $50,000;the Financial Accounting Standards Board; and
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in except for the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this AgreementOption Exercise, enter into any transaction, agreement, arrangement transaction or understanding series of transactions with V Corp. or any Affiliate of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue (other than a wholly-owned Subsidiary of the Company's obligation ) or otherwise that would be required to repurchase be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Convertible Sub Notes Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the election time of such transaction with a Person that is not an Affiliate of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)Company.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
Ordinary Course. During Except as set forth in Schedule 5(e) hereof and except for transactions to which Netco Acquisition and Netco or their affiliates are a party or as otherwise specifically contemplated by the period from the date terms of this Agreement to the Effective Time of the MergerAgreement, the Company shall, EqualNet shall and shall cause its subsidiaries to, Subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, 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, during the period from the date of and except as otherwise expressly contemplated by this Agreement to and the Effective Time of the MergerSchedules hereto, the Company EqualNet shall not, and shall not permit any of its subsidiaries Subsidiaries to:
(i) (xA) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary Subsidiary of the Company EqualNet to its parentEqualNet or to another direct or indirect wholly owned Subsidiary of EqualNet, (yB) 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 (zC) purchase, redeem or otherwise acquire any shares of capital stock of the Company EqualNet or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (1) than, in the case of EqualNet, the issuance of shares of Common Stock (and associated Rights) upon the exercise of Company Stock Options stock options and warrants outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their current terms);
(iii) amend its certificate Articles of incorporationIncorporation, byBy-laws or other comparable charter or organizational documentsdocument other than as contemplated in the Stock Purchase Agreement;
(iv) acquire or agree to acquire (xA) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, association limited liability company or other business organization entity or division thereof or (yB) any assets that are that, in each case, would be material, individually or in the aggregate, to the Company EqualNet and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, mortgage mortgage, pledge, grant a Security Interest in or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except (A) sales or inventory (other than real property) leases in the ordinary course of business consistent with past practicepractice and (B) other immaterial transactions not in excess of $250,000 in the aggregate;
(viiivi) (yA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personPerson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company EqualNet or any of its subsidiariesSubsidiaries, guarantee any debt securities of another personPerson, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000business, or (zB) make any loans, advances or capital contributions to, or investments in, any other personPerson that would be material, individually or in the aggregate, to EqualNet and its Subsidiaries taken as a whole, other than by EqualNet to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000EqualNet;
(ixvii) make or agree to make incur any new capital expenditure or expenditures expenditure, which, individually, is in excess of $500,000 or, singly or in the aggregateaggregate with all other capital expenditures, are in excess of would exceed $5,000,000250,000;
(xviii) make any material tax election, amend any material tax return election relating to Taxes or settle or compromise any material tax liability or refundliability;
(xiix) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company EqualNet included in the Filed SEC Commission Documents or incurred in the ordinary course of business consistent with past practice, or ;
(x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company EqualNet or any of its subsidiaries Subsidiaries is a party;
(xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xii) enter into any new collective bargaining agreement;
(xiii) change any material accounting principle used by it, except as part required by regulations promulgated by the Commission or as mandated by the American Institute of Certified Public Accountants or similar accounting boards or bodies;
(xiv) settle or compromise any litigation (whether or not commenced prior to the Transactions as contemplated by date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with Netco, and, with respect to any such settlement, with the prior written consent of Netco Acquisition, which consent shall not be unreasonably withheld;
(xv) except for those contracts and agreements entered into in the ordinary course of business or with the prior written consent of Netco Acquisition, which consent shall not be unreasonably withheld or delayed, enter into any transaction, joint venture or partnership contract or agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiiixvi) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the The Company shall, and shall cause its subsidiaries --------------- Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all reasonable its 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, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, neither the Company shall not, and shall not permit nor any of its subsidiaries toSubsidiaries shall:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than stock (except dividends and distributions by any a direct or indirect wholly wholly-owned subsidiary Subsidiaries of the Company to its parent), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries Subsidiaries or any other securities thereof or of any rights, warrants or options to acquire any such shares or other securities;
(ii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option 40 Agreement dated as of April 13, 1993 by and among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than (1) the issuance of Common Stock (and associated Rights) isssuances upon the exercise of Company Stock Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date hereof and listed in Section 3.1(c) of the Company Disclosure Schedule;
(iii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and except as contemplated by this Agreement Agreement, adopt or amend in accordance any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of the Company or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its Subsidiaries (in each case, except with their present terms and (2) respect to employees in the issuance ordinary course of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance business consistent with their termspast practice);
(iiiiv) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other comparable charter fashion the corporate structure or organizational documentsownership of any Subsidiary of the Company;
(ivv) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets;
(vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or 41 division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries Subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, mortgage or otherwise encumber or subject except for borrowings permitted under credit facilities filed as exhibits to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000SEC Documents, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company or any direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company;
(viii) change any accounting principle used by it, in unless required by the case of clause (y) SEC or (z) above is in an amount which exceeds $50,000;the Financial Accounting Standards Board; and
(ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in except for the aggregate, are in excess of $5,000,000;
(x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party;
(xii) except as part of the Transactions as contemplated by this AgreementOption Exercise, enter into any transaction, agreement, arrangement transaction or understanding series of transactions with V Corp. or any Affiliate of its affiliates; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue (other than a wholly-owned Subsidiary of the Company's obligation ) or otherwise that would be required to repurchase be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Convertible Sub Notes Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the election time of such transaction with a Person that is not an Affiliate of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Metro-Goldwyn-Mayer Inc)
Ordinary Course. During the period from the date of this Agreement to the earlier of the Effective Time of the MergerMerger and the appointment or election of Sub's designees to the Company Board pursuant to Section 7.06 (such earlier time, the "Control Time"), the Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall be unimpaired at the Effective Time of the Merger. Without limiting the generality of the foregoing, except as contemplated by this Agreement or otherwise approved in writing by Parent, during the period from the date of this Agreement to the Effective Time of the MergerControl Time, the Company shall not, and shall not permit any of its subsidiaries to:
(i) (xA) declare, set aside or pay any dividends onon (except for the regularly quarterly dividends of $.06 per share), or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (yB) 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 (zC) 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;
(ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (securities, other than (1) the issuance of Common Stock (and associated Rights) upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms);
(iii) amend its certificate of incorporationcharter, by-laws or other comparable charter or organizational documents;
(iv) acquire or agree to acquire (xA) 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 (yB) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(viiv) sell, lease, license, mortgage or otherwise encumber or subject to any Lien (except for such Liens required by law) or otherwise dispose of any of its properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000assets, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viiivi) (yA) 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, other than any guarantee except for short-term borrowings incurred in the ordinary course of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not business consistent with past practice and pursuant to exceed $10,000,000existing agreements, or (zB) 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, in the case of clause (y) or (z) above is in an amount which exceeds $50,000;
(ixvii) make or agree to make any new capital expenditure or expenditures whichnot contemplated by the Company's current budget, individuallyas such budget is set forth in Section 6.01 of the Disclosure Schedule;
(viii) (A) grant to any officer of the Company or any of its subsidiaries any increase in compensation, is except as was required under employment agreements in excess effect as of $500,000 orJanuary 26, 1997, (B) 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 January 26, 1997, (C) except as set forth in Section 6.01 of the aggregateDisclosure Schedule, are enter into any employment, severance or termination agreement with any officer of the Company or any of its subsidiaries or (D) amend any Benefit Plan in excess of $5,000,000any 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) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund;
(xi) pay, discharge discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements ;
(or the notes theretoxi) of the Company included in the Filed SEC Documents or incurred except in the ordinary course of business consistent with past practicebusiness, modify, amend or terminate any Material Contract or waive the benefits of, or agree to modify in release or assign any manner, material rights or claims under any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a partyMaterial Contract;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into make any transaction, agreement, arrangement material tax election or understanding with V Corp. settle or compromise any of its affiliatesmaterial income tax liability; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in accordance with the "Change of Control" provisions of the Indenture)actions.
Appears in 1 contract
Ordinary Course. During Except as expressly provided or permitted herein, or as consented to in writing by Buyer, as it relates to the Company, or Sellers, as it relates to Buyer or any of its Subsidiaries, during the period from commencing on the date of this Agreement to and ending on the Effective Time of Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the Merger“Pre-Closing Period”), Buyer and its Subsidiaries and the Company shall, shall act and shall cause its subsidiaries to, carry on their respective businesses in the usual, regular Ordinary Course of Business and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, shall use all commercially reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees maintain and preserve their business organization, assets and properties, preserve their business relationships with customers, strategic partners, suppliers, licensors, licensees, distributors and others having business dealings with themit and keep available the services of its present officers, employees and consultants. Without limiting the generality of the foregoing, except as expressly provided or permitted herein, or pursuant to the terms of any Applicable Contract which is disclosed in a Disclosure Schedule during the period from the date of this Agreement to the Effective Time of the MergerPre-Closing Period, neither the Company shall not, and shall not permit nor Buyer or any of its subsidiaries toSubsidiaries shall directly or indirectly, do any of the following without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), provided that Section 6.2(a)(viii) shall not apply with respect to actions taken by the Buyer:
(i) (x) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock or other equity securities, other than dividends except that the Company may make distributions to the Sellers in sufficient amount to pay federal, state and distributions by any direct or indirect wholly owned subsidiary local income taxes, at the highest marginal tax rates applicable to such Sellers on the net distributive share of the Company Company’s income, losses, deductions and credits that have been separately stated and passed through to its parentthe Sellers under Section 1366 of the Code, (y) provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its capital stock or other equity securities 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 (z) any of its other securities; or 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 capital stock or other securities;
(ii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such sharescapital stock, voting securities or convertible or exchangeable securities (other than (1) the issuance of Common Stock (and associated Rights) shares of capital stock upon the exercise of Company Stock Options options or warrants outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their termsAgreement);
(iii) amend its certificate any of incorporation, by-laws the Organizational Documents or other comparable charter or organizational documentsdocuments or enter into any new line of business or discontinue any existing line of business; provided, however, that Sellers acknowledge and agree that Buyer may amend its bylaws as contemplated by Section 6.14 of this Agreement;
(iv) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof thereof, or (y) any assets that are material, individually or in the aggregate, to the Company or Buyer, as the case may be; provided, however, that Sellers acknowledge and its subsidiaries taken as a wholeagree that Buyer may purchase RBA, except purchases of inventory (other than real property) Inc. for $5 million in the ordinary course of business consistent with past practicecash;
(Av) grant to sell, lease, license, pledge, or otherwise dispose of or encumber any employee, officer material properties or director material assets of the Company or Buyer or any of its subsidiaries any increase in compensationSubsidiaries, except as the case may be, other than in the ordinary course Ordinary Course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationBusiness;
(vi) make knowingly or irrevocably waive any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results material right of operations of the Company, except insofar as may have been required by a change in GAAP or other applicable laws or regulationssuch company under any Material Contract;
(vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of properties or assets of the Company and its subsidiaries having a fair market value in excess of $50,000, except sales or inventory (other than real property) in the ordinary course of business consistent with past practice;
(viii) (yA) incur any indebtedness for borrowed money Indebtedness other than draws under such company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or guarantee pay any guaranty fees or other fees to any guarantor of any Indebtedness of such indebtedness of another personcompany, issue (B) issue, sell or sell amend any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiariessuch company, guarantee any debt securities of another personPerson, enter into any "“keep well" ” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (zC) make any loans, advances or capital contributions to, or investments investment in, any other personPerson; provided, other than to the Company or any direct or indirect wholly owned subsidiary of the Companyhowever, that such company may, in the case Ordinary Course of clause Business, invest in debt securities maturing not more than ninety (y90) days after the date of investment, or (ziv) above is other than in an amount which exceeds the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect such company against fluctuations in commodities prices or exchange rates;
(viii) make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of $50,000100,000 in the aggregate;
(ix) make any changes in accounting methods, principles or agree to make any new capital expenditure or expenditures whichpractices, individually, is except insofar as may have been required by a change in excess of $500,000 or, in the aggregate, are in excess of $5,000,000GAAP;
(x) make except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of any current or former director, officer or employee, (B) increase in any material tax electionrespect the compensation or fringe benefits of, amend or pay any bonus to, any director, officer or employee, (C) accelerate the payment, right to payment or vesting of any material tax return compensation or settle benefits, including any outstanding options or compromise restricted equity awards, other than as contemplated by this Agreement, (D) grant any material tax liability options to purchase capital stock, equity appreciation rights, equity based or refundequity related awards, performance units or restricted equity, or (E) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Benefit Plan of such Company;
(xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xii) enter into or amend any contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder);
(xiii) commence, pay, discharge discharge, settle or satisfy any material lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, satisfaction in the ordinary course Ordinary Course of business consistent with past practice or in accordance with their terms, Business of liabilities reflected or reserved against in, in the Reviewed Balance Sheet (as it relates to the Company) or contemplated by, the Buyer’s most recent consolidated financial statements (referred to above or the notes thereto) of the Company included in the Filed SEC Documents or subsequently incurred in the ordinary course Ordinary Course of business consistent with past practiceBusiness, or waive the any material benefits of, or agree to modify in any manner, of any confidentiality, standstill or similar agreement agreements to which the Company or any of its subsidiaries such company is a party;
(xiixiv) except as part permit any material increase in the number of employees employed by such company on the Transactions as contemplated by this Agreement, date hereof;
(xv) terminate or fail to renew any Governmental Authorization that is required for continued operations;
(xvi) enter into any transaction, agreement, arrangement collective bargaining agreement or understanding union contract with V Corp. any labor organization or any of its affiliates; orunion;
(xiiixvii) authorize accelerate or defer any ofobligation or payment by or to such company, or commit not pay any accounts payable or agree other obligation of such company when due and other than in the Ordinary Course of Business;
(xviii) decrease or defer in any material respect the level of training provided to take any of, the foregoing actions employees of such Company or the level of costs expended in connection therewith; and
(it being understood and agreed that the Company shall not be deemed xix) fail to have breached the foregoing covenant by virtue of the Company's obligation maintain insurance at levels at least comparable to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger current levels or otherwise in accordance a manner inconsistent with the "Change of Control" provisions of the Indenture)past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tower Tech Holdings Inc.)
Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger, the Company GEXA shall, and shall cause its subsidiaries Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, and use all its commercially reasonable efforts to preserve intact their current business organizations, retain and keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with themthem to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Closing Date (it being understood and agreed by Holdings and GEXA that this Section 4.2(a) is a material covenant and FPL Group and Holdings is relying on GEXA’s compliance with the provisions of this covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) hereof). Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time of the Mergerand except as otherwise required by law, the Company shall not, and shall not permit neither GEXA nor any of its subsidiaries toSubsidiaries shall, without the prior written consent of Holdings:
(i) (x) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than whether payable in cash, stock, property or otherwise (except dividends and distributions by any a direct or indirect wholly owned subsidiary Subsidiary of the Company GEXA to its parentGEXA), (y) 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 (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company GEXA or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(ii) authorize for issuance, issue, deliver, sellsell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable forinto, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (1x) the issuance of Common Stock (and associated Rights) issuances upon the exercise of Company Stock Options stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of this Agreement the GEXA Disclosure Schedule, and (y) issuances of Continental Shares in the ordinary course of business, consistent with past practices and in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their termsContinental Agreement);
(iii) except as set forth on Section 4.2(a)(iii) of the GEXA Disclosure Schedule, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, warrant, restricted stock, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of GEXA or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of GEXA or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of GEXA or any of its Subsidiaries;
(iv) amend its certificate articles of incorporation, by-laws or other comparable charter equivalent organizational documents or organizational documents;
(iv) acquire alter through merger, liquidation, reorganization, restructuring or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by in any other manner, any business fashion the corporate structure or any corporation, partnership, joint venture, association or other business organization or division thereof or (y) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, except purchases ownership of inventory (other than real property) in the ordinary course of business consistent with past practice;
(A) grant to any employee, officer or director of Company GEXA or any of its subsidiaries any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (B) grant to any employee, officer or director of Company or any of its subsidiaries any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulationSubsidiaries;
(viv) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations except as set forth on Section 4.2(a)(v) of the CompanyGEXA Disclosure Schedule, except insofar as may have been required by a change in GAAP or other applicable laws or regulations;
(vii) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets other than (i) disposals that do not exceed $50,000 in the aggregate and that are made in the ordinary course of its business or (ii) the Company and sale of electricity to its subsidiaries having a fair market value customers in excess the ordinary course of $50,000, except sales or inventory business;
(vi) incur any Debt (other than real property) in the ordinary course of business consistent with past practice;
(viii) (y) incur any indebtedness for borrowed money or guarantee any such indebtedness practices associated with the purchase and sale of another personelectricity and transmission and distribution under existing credit facilities), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company GEXA or any of its subsidiariesSubsidiaries, 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, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000Person, or (z) make any loans, advances or capital contributions to, or investments in, any other personPerson, other than to the Company GEXA or any direct or indirect wholly owned subsidiary Subsidiary of GEXA;
(vii) change any accounting principle used by it, unless required by the Company, in SEC or the case Financial Accounting Standards Board or change any credit practices or collection policies;
(viii) enter into any transaction or series of clause transactions with any Affiliate of GEXA (yother than a wholly owned Subsidiary of GEXA) or (z) above otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to GEXA or such Subsidiary as would be obtainable by GEXA or such Subsidiary at the time of such transaction with a Person that is in not an amount which exceeds $50,000Affiliate of GEXA;
(ix) make enter into or agree to make amend, modify, supplement, terminate, assign or waive any new capital expenditure material provision of any Customer Contract with any customer or expenditures whichpotential customer, individually, is in excess of $500,000 or, provided that GEXA and its Subsidiaries may (a) terminate Customer Contracts for default or nonpayment in the aggregateordinary course of business consistent with past practices, are and (b) enter into, modify, amend or supplement Customer Contracts in excess the ordinary course of $5,000,000business consistent with past practices if the terms of such contracts, agreements or arrangements as entered into, amended, modified, or supplemented do not differ in any material adverse respect from the terms set forth in the forms of client contracts attached to Section 4.2(a)(ix) of the GEXA Disclosure Schedule;
(x) make any material capital expenditures in excess of $50,000 individually or $250,000 in the aggregate, or, in either case, enter into any binding commitment or contract to make such expenditures;
(xi) make any tax election, amend any material tax return election or settle or compromise any material tax liability or refund, except as would not reasonably be expected to have a Material Adverse Effect as to GEXA;
(xixii) except as contemplated by Section 6.2(g) of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)) in excess of $100,000, net of any insurance benefit to GEXA, in the aggregate, other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed GEXA SEC Documents or incurred in the ordinary course of business and consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a partypractices;
(xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or
(xiii) authorize settle or compromise any ofpending or threatened suit, action or claim relating to this Agreement and the transactions contemplated hereby;
(xiv) commit or agree in writing or otherwise to do any act restricted by this Section 4.2;
(xv) fail to maintain insurance coverages as contemplated by Section 3.1(bb) and file and prosecute any claims thereunder relating the business of GEXA and its Subsidiaries;
(xvi) fail to invest available cash balances, to the extent not otherwise required by the terms of GEXA’s existing credit facilities, in investments that would qualify as Permitted Investments.
(xvii) (A) grant any waiver of any material term under, (B) give any material consent with respect to, (C) assign, terminate or amend, in any material respect, any Material Contract (including without limitation the top 100 Customer Contracts) or GEXA Permit, or allow a GEXA Permit to lapse or terminate or fail to renew any GEXA Permit;
(xviii) subject to (xvii) and except for Customer Contracts, enter into, terminate, assign or amend any Contract other than in the ordinary course of business, provided that, if the ordinary course of business exception applies, such actions shall only be permitted if the Contract involves total consideration of less than $50,000 in the aggregate; and
(xix) engage in any practices, take any ofaction, the foregoing actions or enter into any transaction that would result in any misrepresentation or breach of warranty under Section 3.1 of this Agreement; and
(it being understood xx) fail to balance its purchases and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue sales of the Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger electricity in accordance with the "Change of Control" provisions balancing policy of the Indenture)board of directors of GEXA as set forth in the GEXA board resolution dated August 26, 2004.
Appears in 1 contract
Sources: Merger Agreement (Gexa Corp)