Interim Operations of the Company. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the written consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date (as defined in Section 6.12) or the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations of the Company or its subsidiaries and shall use its reasonable efforts to (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate of incorporation or by-laws, as each such document is in effect on the date hereof; (b) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stock, including Common Shares or any securities convertible into capital stock, or grant any warrants, options, or other rights to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stock; (c) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; (d) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than if requested by Parent; (e) except in the ordinary course of business, sell, pledge, dispose of or encumber, or agree to sell, pledge, dispose of or encumber, any material assets of the Company or any of its subsidiaries other than in connection with discontinued operations; (f) acquire (by merger, consolidation, or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (g) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of the Company or any of its subsidiaries in effect on the date hereof; (i) make any loans, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (k) enter into any agreement to do any of the foregoing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Trident International Inc), Agreement and Plan of Merger (Illinois Tool Works Inc), Agreement and Plan of Merger (Trident International Inc)
Interim Operations of the Company. Except as set forth During the period from the date of this Agreement to the Closing, the Seller shall cause the Company to conduct its business only in Schedule 6.3 heretothe ordinary course of business consistent with past practice, contemplated hereby or except to the extent otherwise necessary to comply with the written consent of Parent or Subsidiaryprovisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the earlier Closing, except as required hereby in connection with this Agreement, the Seller shall not permit the Company to do any of the New Board Date (as defined in Section 6.12) or following without the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations prior consent of the Company or its subsidiaries and shall use its reasonable efforts to Purchaser: (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate Articles of incorporation Incorporation or by-lawsBylaws, as each such document is in effect on the date hereof; (bii) issue or sellissue, sell or authorize for issuance or salesale (including, additional but not limited to, by way of stock split or dividend), shares of any class of capital stockits securities or enter into any agreements or commitments of any character obligating it to issue such securities, including Common Shares other than in connection with the exercise of outstanding warrants or any securities convertible into capital stockoutstanding stock options granted to directors, officers or grant any warrants, options, or other rights employees of the Company prior to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stockthe date of this Agreement; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock other than if requested by Parent; common stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than if requested those relating to the transactions contemplated by Parent; this Agreement, (evi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, sell, pledge, dispose of or encumberconsistent with past practice, or agree to sell, pledge, dispose of or encumber, any material assets of except for the Company Closing Obligations, (vii) pay, discharge or any of its subsidiaries other than in connection with discontinued operations; satisfy claims or liabilities (f) acquire (by mergerabsolute, consolidationaccrued, contingent or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gotherwise) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice practice, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of except for the Company Closing Obligations, (viii) cancel any material debts or waive any of its subsidiaries in effect on the date hereof; material claims or rights, (iix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other than intercompany commitments of any other Person, (xi) alter in any material way the manner of keeping the books, accounts and short-term investments pursuant to customary cash management systems or records of the Company in or the ordinary course and consistent with past practices) in, any other person accounting practices therein reflected other than such of the foregoing as are made alterations or changes required by the Company to GAAP or in a subsidiary of the Company; applicable law, (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (kxii) enter into any agreement indemnification, contribution or similar contract pursuant to do which the Company may be required to indemnify any other Person or make contributions to any other Person, (xiii) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination, or (xiv) or change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by the foregoingPurchaser.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Zewar Jewellery, Inc.), Stock Purchase Agreement (One E Commerce CORP)
Interim Operations of the Company. Except as set forth in Schedule 6.3 heretoThe Company covenants and agrees that, contemplated hereby or with the written consent of Parent or Subsidiary, during the period from the date of this Agreement prior to the earlier of the New Board Date Effective Time (as defined unless Purchaser shall otherwise agree in Section 6.12) or the Effective Time, the Company shall, writing and shall cause its subsidiaries to, conduct (except as otherwise permitted expressly contemplated by Section 6.1) its and their business only this Agreement or in the ordinary course, will make no material changes in the operations of the Company or its subsidiaries and shall use its reasonable efforts to Disclosure Letter): (ia) preserve intact the business organization of the Company and its subsidiariessubsidiaries shall be conducted only in the ordinary and usual course and, (ii) keep available to the services extent consistent therewith, each of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries shall use its reasonable best efforts to preserve its business organization intact and maintain its existing relations with customers, suppliers, employees and business associates; (b) the Company shall not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of its subsidiaries. Except ; (ii) amend the Certificate or the Bylaws or, except as otherwise contemplated herein (including Section 7.2), amend, modify or terminate the Rights Agreement; (iii) split, combine or reclassify the outstanding Shares; or (iv) declare, set aside or pay any dividend payable in cash, stock or property with respect to the Shares or Preferred Shares; (c) except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier Section 7.1(c) of the New Board Date or the Effective TimeDisclosure Letter, neither the Company nor any of its subsidiaries will: shall (ai) amend or otherwise change its certificate of incorporation or by-laws, as each such document is in effect on the date hereof; (b) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stock, including Common Shares or any securities convertible into capital stock, or grant any warrants, options, or other rights to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stock; (c) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; (d) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than if requested by Parent; (e) except in the ordinary course of businessissue, sell, pledge, dispose of or encumberencumber any additional shares of, or agree securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class of the Company or its subsidiaries or any other property or assets other than, in the case of the Company, Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans or upon conversion of the Notes or Warrants; (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber, encumber any material assets of the Company or incur or modify any of its subsidiaries indebtedness or other liability other than in connection with discontinued operations; (f) acquire (by merger, consolidation, or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (g) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of the Company or any of its subsidiaries in effect on the date hereof; (i) make any loans, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (k) enter into any agreement to do any of the foregoing.13
Appears in 2 contracts
Samples: Agreement and Plan of Merger Agreement and Plan of Merger (Vencor Inc), Agreement and Plan of Merger Agreement and Plan of Merger (Theratx Inc /De/)
Interim Operations of the Company. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the written consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date (as defined in Section 6.12) or the Effective Time, The Company covenants and agrees that the Company shall, and shall cause each of its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only operations in the ordinary course, will make no material changes in the operations and usual course of the Company or its subsidiaries business consistent with past practice and shall use its all reasonable efforts to (i) preserve intact the their respective business organization of the Company and its subsidiariesorganizations' goodwill, (ii) keep available the services of its and their respective present officers and key employees, and (iii) preserve the good will of those goodwill and business relationships with suppliers, distributors, customers and others having business relationships with them. Without limiting the generality of the foregoing, and except as otherwise permitted by this Agreement or as specifically contemplated by the Company and its subsidiaries. Except Disclosure Letter, or as set forth in Schedule 6.3 heretorequired by applicable law, contemplated hereby rule or with the consent of Parent or Subsidiary, during the period from the date of this Agreement regulation prior to the earlier of the New Board Date or the Effective Time, neither without the consent of Acquiror, which consent shall not be unreasonably withheld, the Company nor any will not, and will cause each of its subsidiaries willnot to: (a) amend or otherwise change propose to amend their respective charters or bylaws; or split, combine or reclassify their outstanding capital stock or declare, set aside or pay any dividend or distribution in respect of any 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 certificate capital stock, except for cash dividends and cash distributions paid by subsidiaries to other subsidiaries or to the Company; 14 18 (b) (i) issue or authorize or propose the issuance of, sell, pledge or dispose of, or agree to issue or authorize or propose the issuance of, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of incorporation any kind to acquire any shares of, their capital stock of any class, any debt or by-lawsequity securities convertible into or exchangeable for such capital stock or any other equity related right (including any phantom stock or SAR rights), other than any such issuance pursuant to options, warrants, rights or convertible securities outstanding as each such document is in effect on of the date hereof; (bii) issue acquire or sellagree to acquire by merging or consolidating with, or authorize 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, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets in each case which are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole; (iii) sell (including by sale-leaseback), lease, pledge, dispose of or encumber any assets or interests therein, which are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole, other than in the ordinary course of business and consistent with past practice; (iv) incur or become contingently liable with respect to any material indebtedness for issuance borrowed money or saleguarantee any such indebtedness or issue any debt securities or otherwise incur any material obligation or liability (absolute or contingent) other than short-term indebtedness in the ordinary course of business and consistent with past practice; (v) redeem, additional purchase, acquire or offer to purchase or acquire any (x) shares of any class of capital stock, including Common Shares or any securities convertible into capital stock, or grant any warrants, options, or other rights to acquire, or incur any obligation or make any commitment for issuance of, its capital stock or any securities convertible into capital stock(y) long-term debt other than as required by governing instruments relating thereto; (cvi) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; (d) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than if requested by Parent; (e) except in the ordinary course of business, sellneither the Company nor any Company Subsidiary shall modify, pledge, dispose of amend or encumber, or agree to sell, pledge, dispose of or encumber, terminate any material assets of contract or agreement to which the Company or any of its subsidiaries other than in connection with discontinued operationsCompany Subsidiary is a party or waive, release or assign any material rights or claims; or (fvii) acquire (by merger, consolidation, or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gc) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify amend any contractemployment, agreementseverance, commitment or special pay arrangement with respect to any termination of the foregoing; (h) take any action with respect to the grant of any severance employment or termination pay other than pursuant to policies arrangements or agreements of the Company with any directors, officers or any of its subsidiaries in effect on the date hereof; key employees except for (i) make any loans, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (j) except for normal salary increases and merit bonuses, (ii) arrangements in connection with employee transfers or other employee benefit arrangements made (iii) agreements with new employees, in each case, in the ordinary course of business consistent with past practice; (d) adopt, enter into or amend any, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend become obligated under any new bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, healthcare, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employeeemployee or retiree, except as required to comply with changes in applicable law occurring after the date hereof; provided, however, the Company shall not be prevented from amending the Company ESOP (as defined in Section 6.3(c) hereof) as contemplated by Section 6.3(c) hereof; (e) except as may be required as a result of a change in law or in GAAP after the date hereof, change any of the accounting principles or practices used by it; (f) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the financial statements (or the notes thereto) of the Company incurred in the ordinary course of business consistent with past practice; (g) authorize, commit to or make any equipment purchases or capital expenditures other than in the ordinary course of business and consistent with past practice (provided, that such purchases and/or expenditures shall, in the aggregate, be no more than $250,000) or as shown on Schedule 6.1(g); or (kh) enter into any agreement take or agree to do take any of the foregoing.foregoing actions or any action that would, or is reasonably likely to, result in any of its representations and warranties set forth in this Agreement becoming untrue, or in any of the conditions to the Merger set forth in Article VII not being satisfied. Section 6.2
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Horizon Acquisition Inc), Exhibit 1 Agreement and Plan of Merger (Ameriwood Industries International Corp)
Interim Operations of the Company. Except as set forth During the period from the date of this Agreement to the Closing, the Company to conduct its business only in Schedule 6.3 heretothe ordinary course of business consistent with past practice, contemplated hereby or except to the extent otherwise necessary to comply with the written consent of Parent or Subsidiaryprovisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the earlier of the New Board Date (Closing, except as defined required hereby in Section 6.12) or the Effective Timeconnection with this Agreement, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations not do any of the Company or its subsidiaries and shall use its reasonable efforts to following without the prior consent of the Purchaser: (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate Certificate of incorporation Incorporation or by-lawsBylaws, as each such document is in effect on the date hereof; (bii) issue or sellissue, sell or authorize for issuance or salesale (including, additional but not limited to, by way of stock split or dividend), shares of any class of capital stockits securities or enter into any agreements or commitments of any character obligating it to issue such securities, including Common Shares other than in connection with the exercise of outstanding warrants or any securities convertible into capital stockoutstanding stock options granted to directors, officers or grant any warrants, options, or other rights employees of the Company prior to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stockthe date of this Agreement; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock other than if requested by Parent; common stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than if requested those relating to the transactions contemplated by Parent; this Agreement, (evi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, sell, pledge, dispose of or encumberconsistent with past practice, or agree to sell, pledge, dispose of or encumber, any material assets of except for the Company Closing Obligations, (vii) pay, discharge or any of its subsidiaries other than in connection with discontinued operations; satisfy claims or liabilities (f) acquire (by mergerabsolute, consolidationaccrued, contingent or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gotherwise) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice practice, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of except for the Company Closing Obligations, (viii) cancel any material debts or waive any of its subsidiaries in effect on the date hereof; material claims or rights, (iix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other than intercompany commitments of any other Person, (xi) alter in any material way the manner of keeping the books, accounts and short-term investments pursuant to customary cash management systems or records of the Company in or the ordinary course and consistent with past practices) in, any other person accounting practices therein reflected other than such of the foregoing as are made alterations or changes required by the Company to GAAP or in a subsidiary of the Company; applicable law, (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (kxii) enter into any agreement indemnification, contribution or similar contract pursuant to do which the Company may be required to indemnify any other Person or make contributions to any other Person, (xiii) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination, or (xiv) change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by the Purchaser. Notwithstanding the foregoing, prior to the Closing, the Company may, without the consent of the foregoingPurchaser, create the Operating Subsidiary and transfer to the Operating Subsidiary the assets and liabilities of the Company related to the breast cancer detection business.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Verdad Telecom, Inc.), Stock Purchase Agreement (Mammatech Corp)
Interim Operations of the Company. Except as set forth During the period from the date of this Agreement to the Closing, the Primary Sellers shall cause the Company to conduct its business only in Schedule 6.3 heretothe ordinary course of business consistent with past practice, contemplated hereby or except to the extent otherwise necessary to comply with the written consent of Parent or Subsidiaryprovisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the earlier Closing, except as required hereby in connection with this Agreement, the Primary Sellers shall not permit the Company to do any of the New Board Date (as defined in Section 6.12) or following without the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations prior consent of the Company or its subsidiaries and shall use its reasonable efforts to Purchaser: (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate Certificate of incorporation Incorporation or by-lawsBylaws, as each such document is in effect on the date hereof; (bii) issue or sellissue, sell or authorize for issuance or salesale (including, additional but not limited to, by way of stock split or dividend), shares of any class of capital stockits securities or enter into any agreements or commitments of any character obligating it to issue such securities, including Common Shares other than in connection with the exercise of outstanding warrants or any securities convertible into capital stockoutstanding stock options granted to directors, officers or grant any warrants, options, or other rights employees of the Company prior to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stockthe date of this Agreement; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock other than if requested by Parent; common stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than if requested those relating to the transactions contemplated by Parent; this Agreement, (evi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, sell, pledge, dispose of or encumberconsistent with past practice, or agree to sell, pledge, dispose of or encumber, any material assets of except for the Company Closing Obligations, (vii) pay, discharge or any of its subsidiaries other than in connection with discontinued operations; satisfy claims or liabilities (f) acquire (by mergerabsolute, consolidationaccrued, contingent or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gotherwise) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice practice, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of except for the Company Closing Obligations, (viii) cancel any material debts or waive any of its subsidiaries in effect on the date hereof; material claims or rights, (iix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other than intercompany commitments of any other Person, (xi) alter in any material way the manner of keeping the books, accounts and short-term investments pursuant to customary cash management systems or records of the Company in or the ordinary course and consistent with past practices) in, any other person accounting practices therein reflected other than such of the foregoing as are made alterations or changes required by the Company to GAAP or in a subsidiary of the Company; applicable law, (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (kxii) enter into any agreement indemnification, contribution or similar contract pursuant to do which the Company may be required to indemnify any other Person or make contributions to any other Person, (xiii) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination, or (xiv) change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by the foregoingPurchaser.
Appears in 1 contract
Interim Operations of the Company. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the written consent of Parent or Subsidiary, during the period from (a) From the date of this Agreement hereof to the earlier of the New Board Date (as defined in Section 6.12) or the Effective TimeClosing, Sellers shall cause the Company shall, and shall cause its subsidiaries to, the Subsidiaries to conduct (except as otherwise permitted by Section 6.1) its and their business respective businesses only in the ordinary course, will make no material changes course consistent with past practices and pay or cause to be paid their respective obligations in the operations of the Company or its subsidiaries a timely fashion in accordance with their respective terms and shall use its reasonable efforts to (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of Subsidiary shall, unless Buyer gives its subsidiaries will: prior written approval (awhich approval shall not be unreasonably withheld, conditioned or delayed), (i) amend or otherwise change its articles or certificate of incorporation or by-laws, as each such document is in effect on the date hereof; , (bii) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stockstock or issue, including Common Shares grant or enter into any securities subscription, option, warrant, right, convertible into capital stock, or grant any warrants, options, security or other rights agreement or commitment of any character obligating the Company or the Subsidiaries to acquireissue securities, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stock; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) authorize any capital expenditure in excess of $50,000 (other than if requested by Parent; (ethe capital expenditures described on SCHEDULE 4.07(C) except in the ordinary course of businessattached hereto, which Buyer hereby consents to) or sell, pledge, dispose of or encumber, or agree to sell, pledge, dispose of or encumber, any material assets of the Company or any the Subsidiaries, except for sales of its subsidiaries other than assets in connection the ordinary course of business and sales of surplus or non-essential assets disposed of for fair market value in the ordinary course of the Company's operations consistent with discontinued operations; past practices, (fvi) acquire (by merger, share exchange, consolidation, or acquisition of stock or assets, or otherwise) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more enter into any contract, agreement, commitment or arrangement with respect to an acquisitionany of the foregoing, merge (vii) incur any indebtedness for borrowed money (other than pursuant to credit, loan or consolidate with other financing agreements or arrangements as in effect on the date hereof), issue any corporation, debt securities or enter into or modify any contract, agreement, commitment or arrangement with respect to thereto, (viii) enter into, amend or terminate any employment or consulting agreement with any director, officer, consultant or key employee of the foregoing; (g) Company or the Subsidiaries, enter into, amend or terminate any employment agreement with any other person otherwise than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant or payment of any severance or termination pay pay, other than pursuant to policies or agreements of the Company or any of its subsidiaries the Subsidiaries in effect on the date hereof; hereof or as contemplated by Section 6.19, (iix) make enter into, extend or renew any loanslease for office or manufacturing space, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (jx) except for salary increases as required by law, adopt, amend or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend terminate any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; officer or employee of the Company or the Subsidiaries or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity, (xi) grant any increase in compensation, or grant or make any bonus or other compensatory payments, to any director, officer, consultant or key employee of the Company or the Subsidiaries, except (A) pursuant to agreements entered into prior to August 9, 2001, (B) in the ordinary course of business consistent with past practices, or (kC) enter into as contemplated by Section 6.19, (xii) grant any agreement increase in compensation to do any other employee of the foregoingCompany or the Subsidiaries except in the ordinary course of business consistent with past practice, or (xiii) make or change any election relating to Taxes.
Appears in 1 contract
Interim Operations of the Company. Except as set forth During the period from the date of this Agreement to the Change of Control Date, the Company shall and the Seller and the Purchaser shall cause the Company to conduct its business only in Schedule 6.3 heretothe ordinary course of business consistent with past practice, contemplated hereby or except to the extent otherwise necessary to comply with the written consent of Parent or Subsidiaryprovisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the earlier Change of the New Board Date (as defined in Section 6.12) or the Effective TimeControl Date, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only required hereby in the ordinary course, will make no material changes in the operations of the Company or its subsidiaries and shall use its reasonable efforts to (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships connection with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective TimeAgreement, neither the Company nor the Seller shall permit the Company to do any of its subsidiaries willthe following without the prior consent of the Purchaser: (ai) amend or otherwise change its certificate Certificate of incorporation Incorporation or by-lawsBylaws, as each such document is in effect on the date hereof; (bii) issue or sellissue, sell or authorize for issuance or salesale (including, additional but not limited to, by way of stock split or dividend), shares of any class of capital stockits securities or enter into any agreements or commitments of any character obligating it to issue such securities, including Common Shares other than in connection with the exercise of warrants or any securities convertible into capital stock, or grant any warrants, options, or other rights stock options outstanding prior to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stockthe date of this Agreement; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock other than if requested by Parent; the Common Stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than if requested those relating to the transactions contemplated by Parent; this Agreement, (evi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, sellconsistent with past practice, pledge(vii) pay, dispose of discharge or encumbersatisfy claims or liabilities (absolute, accrued, contingent or agree to sell, pledge, dispose of or encumber, any material assets of the Company or any of its subsidiaries other than in connection with discontinued operations; (f) acquire (by merger, consolidation, or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gotherwise) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice practice, (viii) cancel any material debts or enter into waive any material claims or modify any contractrights, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of the Company or any of its subsidiaries in effect on the date hereof; (iix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other than intercompany accounts and short-term investments pursuant to customary cash management systems commitments of the Company any other Person, (xi) grant any increase in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made compensation payable or to become payable by the Company to any of its employees, officers or directors or any increase in a subsidiary of the Company; (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharinginsurance, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment pension or other employee benefit plan, agreement, trust, fund payment or arrangement made to, for the benefit or welfare of with any employee; such employees, officers or directors, (kxii) enter into any agreement employment contract or grant any severance or termination pay or make any such payment with or to do any officer, director or employee of the foregoingCompany, (xiii) alter in any material way the manner of keeping the books, accounts or records of the Company or the accounting practices therein reflected other than alterations or changes required by GAAP or applicable law, (xiv) enter into any indemnification, contribution or similar contract pursuant to which the Company may be required to indemnify any other Person or make contributions to any other Person, (xv) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination or (xvi) or change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by each of the Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ascend Acquisition Corp.)
Interim Operations of the Company. Except as set forth During the period from the date of this Agreement to the Closing, the Primary Seller shall cause the Company to conduct its business only in Schedule 6.3 heretothe ordinary course of business consistent with past practice, contemplated hereby or except to the extent otherwise necessary to comply with the written consent of Parent or Subsidiaryprovisions hereof and with applicable laws and regulations. Additionally, during the period from the date of this Agreement to the earlier Closing, except as required hereby in connection with this Agreement, the Primary Seller shall not permit the Company to do any of the New Board Date (as defined in Section 6.12) or following without the Effective Time, the Company shall, and shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations prior consent of the Company or its subsidiaries and shall use its reasonable efforts to Purchasers: (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate Certificate of incorporation Incorporation or by-lawsBylaws, as each such document is in effect on the date hereof; (bii) issue or sellissue, sell or authorize for issuance or salesale (including, additional but not limited to, by way of stock split or dividend), shares of any class of capital stockits securities or enter into any agreements or commitments of any character obligating it to issue such securities, including Common Shares other than in connection with the exercise of outstanding warrants or any securities convertible into capital stockoutstanding stock options granted to directors, officers or grant any warrants, options, or other rights employees of the Company prior to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stockthe date of this Agreement; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) with respect to its capital stock other than if requested by Parent; common stock, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, (v) enter into any material contract or agreement or material transaction or make any material capital expenditure other than if requested those relating to the transactions contemplated by Parent; this Agreement, (evi) create, incur, assume, maintain or permit to exist any indebtedness except as otherwise incurred in the ordinary course of business, sell, pledge, dispose of or encumberconsistent with past practice, or agree to sell, pledge, dispose of or encumber, any material assets of except for the Company Closing Obligations, (vii) pay, discharge or any of its subsidiaries other than in connection with discontinued operations; satisfy claims or liabilities (f) acquire (by mergerabsolute, consolidationaccrued, contingent or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (gotherwise) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice practice, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of except for the Company Closing Obligations, (viii) cancel any material debts or waive any of its subsidiaries in effect on the date hereof; material claims or rights, (iix) make any loans, advances or capital contributions to, or investments in financial instruments of any Person, (x) assume, guarantee, endorse or otherwise become responsible for the liabilities or other than intercompany commitments of any other Person, (xi) alter in any material way the manner of keeping the books, accounts and short-term investments pursuant to customary cash management systems or records of the Company in or the ordinary course and consistent with past practices) in, any other person accounting practices therein reflected other than such of the foregoing as are made alterations or changes required by the Company to GAAP or in a subsidiary of the Company; applicable law, (j) except for salary increases or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; or (kxii) enter into any agreement indemnification, contribution or similar contract pursuant to do which the Company may be required to indemnify any other Person or make contributions to any other Person, (xiii) amend or terminate any existing contracts in any manner that would result in any material liability to the Company for or on account of such amendment or termination, or (xiv) or change any existing or adopt any new tax accounting principle, method of accounting or tax election except as provided herein or agreed to in writing by the foregoingPurchasers.
Appears in 1 contract
Interim Operations of the Company. Except as set forth in Schedule 6.3 hereto, contemplated hereby From the Effective Date until the Closing or with the written consent of Parent or Subsidiary, during the period from the date earlier termination of this Agreement to Agreement, (x) the earlier of the New Board Date (as defined in Section 6.12) or the Effective Time, the Company shall, and Seller shall cause its subsidiaries to, conduct (except as otherwise permitted by Section 6.1) its and their business only in the ordinary course, will make no material changes in the operations of the Company or its subsidiaries and shall use its reasonable efforts to (i) preserve intact the business organization each of the Company and its subsidiariesthe Subsidiary to, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of its subsidiaries will: (a) amend or otherwise change its certificate of incorporation or by-laws, as each such document is in effect on the date hereof; (b) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stock, including Common Shares or any securities convertible into capital stock, or grant any warrants, options, or other rights to acquire, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stock; (c) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; (d) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than if requested by Parent; (e) except in the ordinary course of business, sell, pledge, dispose of or encumber, or agree to sell, pledge, dispose of or encumber, any material assets of the Company or any of its subsidiaries other than in connection with discontinued operations; (f) acquire (by merger, consolidation, or acquisition of stock or assets) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more with respect to an acquisition, merge or consolidate with any corporation, or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (g) other than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant of any severance or termination pay other than pursuant to policies or agreements of the Company or any of its subsidiaries in effect on the date hereof; (i) make any loans, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (j) except for salary increases or other employee benefit arrangements made conduct its business in the ordinary course of business consistent with past practice; (ii) conduct its business in compliance in all material respects with all applicable Laws; and (iii) use reasonable best efforts to preserve intact its business organization and to preserve the present commercial relationships with its employees, contractors, consultants, and customers, and to keep available the services of their respective present officers and management-level employees; provided that, notwithstanding the foregoing, the Company and the Subsidiary may use all available Cash to repay any Indebtedness or intercompany payables prior to the Closing, and (y) except as (i) required by Law (ii) set forth on Schedule 6.1 or (iii) expressly required by this Agreement: unless Buyer has previously consented thereto in writing (which consent will not be unreasonably withheld, conditioned or delayed) Seller shall not permit the Company or the Subsidiary to: (a) (i) acquire, or heretofore described in writing to the Parentdispose of, adopt any business or (except as provided in Sections 4.5 and 4.7 hereof) amend any bonuscorporation, profit sharingpartnership, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment association or other employee benefit planbusiness organization or any material amount of property or assets, agreementor enter into any joint venture, truststrategic alliance, fund exclusive dealing, noncompetition or arrangement for the benefit or welfare of any employeesimilar arrangement; or (kii) expressly cancel any debts owed to or claims held by the Company or the Subsidiary; (b) (i) enter into any agreement to do any Contracts that would constitute a Material Contract, except Contracts that the Company or the Subsidiary are otherwise negotiating as of the foregoing.Effective Date; (ii) amend, modify, renew or terminate any Material Contract (unless the counterparty is in material default under the applicable Material Contract); or (iii) grant any release or waiver of compliance with the material terms of any Material Contracts; except for Material Contracts entered into, renewed or extended in the ordinary course of business consistent with past practice; 40
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Black Box Corp)
Interim Operations of the Company. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the written consent of Parent or Subsidiary, during the period from (a) From the date of this Agreement hereof to the earlier of Closing, Seller and the New Board Date (as defined in Section 6.12) or the Effective Time, Members shall cause the Company shall, and shall cause its subsidiaries to, the Subsidiaries to conduct (except as otherwise permitted by Section 6.1) its and their business respective businesses only in the ordinary course, will make no material changes course consistent with past practices and pay or cause to be paid their respective obligations in the operations of the Company or its subsidiaries a timely fashion in accordance with their respective terms and shall use its reasonable efforts to (i) preserve intact the business organization of the Company and its subsidiaries, (ii) keep available the services of its and their present officers and key employees, and (iii) preserve the good will of those having business relationships with the Company and its subsidiaries. Except as set forth in Schedule 6.3 hereto, contemplated hereby or with the consent of Parent or Subsidiary, during the period from the date of this Agreement to the earlier of the New Board Date or the Effective Time, neither the Company nor any of Subsidiary shall, unless Buyer gives its subsidiaries will: prior written approval (awhich approval shall not be unreasonably withheld, conditioned or delayed), (i) amend or otherwise change its articles or certificate of incorporation or by-lawslaws (or organizational documents equivalent thereto), as each such document is in effect on the date hereof; , (bii) issue or sell, or authorize for issuance or sale, additional shares of any class of capital stockstock or membership interests or issue, including Common Shares grant or enter into any securities subscription, option, warrant, right, convertible into capital stock, or grant any warrants, options, security or other rights agreement or commitment of any character obligating the Company or the Subsidiaries to acquireissue securities, or incur any obligation or make any commitment for issuance of, capital stock or any securities convertible into capital stock; (ciii) in the case of the Company, declare, set aside, make or pay any dividend or other distribution with respect to its capital stock other than if requested by Parent; or membership interests, (div) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stockstock or membership interests, (v) authorize any capital expenditure in excess of $50,000 (other than if requested by Parent; (ethe capital expenditures described on SCHEDULE 4.07(C) except in the ordinary course of businessattached hereto, which Buyer hereby consents to) or sell, pledge, dispose of or encumber, or agree to sell, pledge, dispose of or encumber, any material assets of the Company or any the Subsidiaries, except for sales of its subsidiaries other than assets in connection the ordinary course of business and sales of surplus or non-essential assets disposed of for fair market value in the ordinary course of the Company's operations consistent with discontinued operations; past practices, (fvi) acquire (by merger, share exchange, consolidation, or acquisition of stock or assets, or otherwise) any significant corporation, partnership or other business organization or division thereof for a cash consideration of $100,000 or more enter into any contract, agreement, commitment or arrangement with respect to an acquisitionany of the foregoing, merge (vii) incur any indebtedness for borrowed money (other than pursuant to credit, loan or consolidate with other financing agreements or arrangements as in effect on the date hereof), issue any corporation, debt securities or enter into or modify any contract, agreement, commitment or arrangement with respect to thereto, (viii) enter into, amend or terminate any employment or consulting agreement with any director, officer, consultant or key employee of the foregoing; (g) Company or the Subsidiaries, enter into, amend or terminate any employment agreement with any other person otherwise than in connection with the refinancing of outstanding indebtedness, incur any indebtedness for borrowed money or issue any debt securities except in the ordinary course of business and consistent with past practice or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (h) take any action with respect to the grant or payment of any severance or termination pay pay, other than pursuant to policies or agreements of the Company or any of its subsidiaries the Subsidiaries in effect on the date hereof; hereof or as contemplated by Section 6.19, (iix) make enter into, extend or renew any loanslease for office or manufacturing space, advances or capital contributions to, or investments (other than intercompany accounts and short-term investments pursuant to customary cash management systems of the Company in the ordinary course and consistent with past practices) in, any other person other than such of the foregoing as are made by the Company to or in a subsidiary of the Company; (jx) except for salary increases as required by law, adopt, amend or other employee benefit arrangements made in the ordinary course of business consistent with past practice, or heretofore described in writing to the Parent, adopt or (except as provided in Sections 4.5 and 4.7 hereof) amend terminate any bonus, profit sharing, compensation, incentive, stock option, restricted stock, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; officer or employee of the Company or the Subsidiaries or withdraw from any multi-employer plan so as to create any liability under Article IV of ERISA to any entity, (xi) grant any increase in compensation, or grant or make any bonus or other compensatory payments, to any director, officer, consultant or key employee of the Company or the Subsidiaries, except (A) pursuant to agreements entered into prior to August 9, 2001, (B) in the ordinary course of business consistent with past practices, or (kC) enter into as contemplated by Section 6.19, (xii) grant any agreement increase in compensation to do any other employee of the foregoingCompany or the Subsidiaries except in the ordinary course of business consistent with past practice, or (xiii) make or change any election relating to Taxes.
Appears in 1 contract
