Conduct of Business of the Company. Except as contemplated by this Agreement, during the period from the date of this Agreement until the Effective Time, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One (not to be unreasonably withheld), (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Equity One Inc), Agreement and Plan of Merger (United Investors Realty Trust)
Conduct of Business of the Company. (a) Except as contemplated by this Agreement, during the period from the date of this Agreement until to such time at which directors of the Effective TimeCompany affiliated with or designated by Parent or Purchaser shall constitute a majority of the Board (such time, the "Board Transition Date"), the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and business, substantially consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective TimeAgreement, neither the Company nor any of its subsidiariessubsidiaries will, as prior to the case may be, willBoard Transition Date, without the prior written consent of Equity One (not to be unreasonably withheld), Parent (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities additional shares of capital stock of any class of the Company, or Subsidiary Securitiessecurities convertible into any such shares, in each caseor any rights, warrants or options to acquire any such shares or other convertible securities, other than such issuance of Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or pursuant to the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are Options outstanding on the date hereof, and other than the issuance of Shares in connection with the Company's employee stock purchase plan, or (B) any other securities in respect of, in lieu of or in substitution for for, Shares outstanding on the date hereof; , (ii) purchase or otherwise acquire acquire, or redeem, directly propose to purchase or indirectlyotherwise acquire, any Company Securities or Subsidiary Securities (including the outstanding Shares); , (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make declare or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger propose or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration its Amended and Restated Certificate of Incorporation, as amended, or Bylaws of the Company or governing entity documents of any subsidiary; Amended and Restated By-Laws, (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xivv) agree in writing or otherwise to take any of the foregoing actionsactions or any action which would prevent the conditions to Purchaser's obligation to purchase Shares under the Offer or Parent's and Purchaser's obligation to consummate the Merger from being satisfied; provided, however, that the Company shall be permitted to accelerate the vesting schedule of all outstanding Options. The Company shall, through its Board or any committee thereof, terminate the Company's Employee Stock Purchase Plan so that no Shares shall be issued thereunder subsequent to the date of this Agreement.
Appears in 2 contracts
Samples: Escrow Agreement (Telesciences Inc /De/), Agreement and Plan of Merger (Edb 4tel Acquisition Corp)
Conduct of Business of the Company. Except as contemplated required by this AgreementAgreement or with the prior written consent of Parent, during the period from the date of this Agreement until to the Effective Time, the Company will and its subsidiaries will cause each of the Subsidiaries to conduct its operations according to its only in the ordinary and usual course of business and consistent with past practice and will use all reasonable its best efforts consistent with prudent business practice and will cause each of the Subsidiaries to use its best efforts, to preserve intact the business organization of the Company and each of its subsidiariesthe Subsidiaries, to keep available the services of its and their current present officers and key employees and to maintain existing relationships with preserve the goodwill of those having significant business relationships with the Company and its subsidiaries, in each case in all material respectsit. Without limiting the generality of to the foregoing, and except as otherwise required by this Agreement or as set forth in Section 5.1 6.01 of the Company Disclosure Letter Statement, the Company will not, and except as otherwise expressly provided in or contemplated by this Agreement or will not permit any of the Disclosure LetterSubsidiaries to, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One Parent: (not a) adopt any amendment to be unreasonably withheld)its charter or by-laws or comparable organizational documents; (b) except for issuances of capital stock of the Subsidiaries to the Company, (i) or to a wholly-owned Subsidiary of the Company, issue, reissue or sell or pledge, or authorize or propose the issuance, reissuance or sale of additional shares of capital stock of any class, or pledge shares convertible into capital stock of (A) Company Securities any class, or Subsidiary Securitiesany rights, in each casewarrants or options to acquire any convertible shares or capital stock, other than Shares issuable upon exercise or vesting the issuance of the Rights Shares, pursuant to Options outstanding on the date hereof of this Agreement or pursuant to the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereofStock Option Agreement; (iic) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and any Subsidiary which is wholly-owned by the Company; (d) split, combine, subdivide, reclassify or property) on redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of beneficial interest its capital stock, or capital any of its other shares; (e) except for (A) increases in salary, wages and benefits of non-executive officers or employees of the Company or the Subsidiaries in the ordinary course of business consistent with past practice, (B) increases in salary, wages and benefits granted to officers and employees of the Company or the Subsidiaries in conjunction with new hires, promotions or other changes in job status in the ordinary course of business consistent with past practice, or (C) increases in salary, wages and benefits to employees of the Company or the Subsidiaries pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice, (i) increase the compensation or fringe benefits payable or to become payable to its directors, officers or key employees (whether from the Company or any of the Subsidiaries), or (ii) pay any benefit not required by any existing plan or arrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units), or (iii) grant any severance or termination pay to (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other key employee of the Company or any of its subsidiaries the Subsidiaries or (iv) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock or Employee Plans/Agreements for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable Law or regulation; - 19 - 20 (f) acquire, sell, lease or dispose of any assets (other than cash dividends paid inventory) which are material to the Company by its wholly owned subsidiaries with regard and the Subsidiaries, taken as a whole, or enter into any commitment to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus do any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make foregoing or enter into any acquisition, by means of a merger material commitment or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in transaction outside the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rightspractice; (vg) incur (i) incur, assume or assume pre-pay any long-term debt for borrowed money or incur or assume any short-term debt, except for that the Company and the Subsidiaries may incur, assume or pre-pay debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to under existing contractual arrangements lines of credit, (ii) pay, discharge, settle or satisfy as in effect on the date hereof not in excess of $50,000 in any single instance other claims, liabilities or $150,000 obligations (absolute, accrued, asserted or unasserted, contingent or otherwise, other than in the aggregate; ordinary course of business consistent with past practice, (viiii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Companyperson, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly except in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions or investments between any Subsidiary wholly-owned subsidiaries of by the Company and the Company or another Subsidiary wholly-owned by the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viiih) change make any of tax election that would have a material effect on the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws liability of the Company or governing entity documents the Subsidiaries or settle or compromise any tax liability of any subsidiarythe Company or the Subsidiaries that would materially affect the aggregate tax liability of the Company or the Subsidiaries; (xi) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officersordinary course of business consistent with past practice, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employeesenter into, including the employees of FCA Corp.modify, for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to amend or terminate any employee benefit plan except as required by law loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license which is material to maintain tax qualified status the Company and the Subsidiaries or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit planwaive, release or assign any material rights or claims; or (xivj) agree in writing or otherwise to take any of the foregoing actions.. SECTION 6.02
Appears in 2 contracts
Samples: Exhibit 1 Execution Copy Agreement and Plan of Merger Agreement and Plan of Merger (Impact Systems Inc /Ca/), Execution Copy Agreement and Plan of Merger Agreement and Plan of Merger (Voith Sulzer Acquisition Corp)
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement until hereof to the Effective Time, the Company will and will cause each of its subsidiaries will each to conduct its operations according to its in the ordinary and usual course of business and consistent with past practice and, to the extent consistent therewith, with no less diligence and will effort than would be applied in the absence of this Agreement, use all commercially reasonable efforts consistent with prudent business practice to preserve intact the its current business organization of the Company and each of its subsidiariesorganizations, to keep available the services service of its and their current officers and key employees and to maintain existing preserve its relationships with those customers, suppliers, distributors, lessors, creditors, employees, contractors and others having significant business relationships dealings with it with the Company intention that its goodwill and its subsidiaries, in each case in all material respectsongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or and except as described in Section 4.1 of the Company Disclosure LetterSchedule, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, subsidiaries will, without the prior written consent of Equity One Parent: (not a) amend its Certificate of Incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to be unreasonably withheld), (i) issue, sell or pledgedeliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or authorize otherwise) any stock of any class or propose any other debt or equity securities or equity equivalents (including any stock options or stock appreciation rights) except for the issuance, issuance and sale or pledge of (A) Shares pursuant to options granted under the Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on Plans prior to the date hereof or and except for grants of options in the exercise of rights under any plan or any agreement referred to in Section 3.3 ordinary course of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereofCompany's business consistent with past practices; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iiic) split, combine or reclassify its any shares of beneficial interest or its capital stock or stock, declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock or propertyproperty or any combination thereof) on in respect of its capital stock, make any shares other actual, constructive or deemed distribution in respect of beneficial interest or its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of its subsidiaries except as may be required under the Indenture, any Company Option or any other agreement set forth in Section 4.1(c) of the Company Disclosure Schedule, provided that the Company shall not reduce, or agree to reduce, the conversion price of the Subordinated Notes; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective TimeMerger); (ive) alter through merger, liquidation, reorganization, restructuring or any other fashion the corporate structure of any subsidiary; (f) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (vi) incur or assume any long-term or short-term debt for borrowed money or issue any debt securities in each case, except for debt incurred borrowings under existing lines of credit in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant business, or modify or agree to existing contractual arrangements as in effect on any amendment of the date hereof not in excess terms of $50,000 in any single instance or $150,000 in of the aggregateforegoing (including the Subordinated Notes); (viii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned for obligations of subsidiaries of the CompanyCompany incurred in the ordinary course of business; (iii) make any loans, except advances or capital contributions to or investments in any other person (other than to subsidiaries of the Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice); (vii) except in connection with transactions permitted by (iv) above, make any loans, advances pledge or otherwise encumber shares of capital contributions to, or investments in, any other person (other than wholly owned subsidiaries stock of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it Company or any of its subsidiaries; or (v) mortgage or pledge any of its material assets, except as required by the SEC tangible or required by United States generally accepted accounting principlesintangible, or create or suffer to exist any material Lien thereupon; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (xg) except as may be required under by Applicable Law, enter into, adopt or amend or terminate any previously existing agreement bonus, special remuneration, compensation, severance, stock option, stock purchase agreement, retirement, health, life, or plandisability insurance, severance or other employee benefit plan agreement, trust, fund 24 30 or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including the granting of stock appreciation rights or performance units); (h) grant any share related awardsseverance or termination pay to any director, officer, employee or consultant, except payments made pursuant to written agreements outstanding on the date hereof, the terms of which are in all material respects completely and correctly disclosed on Schedule 4.1(j) or as required by applicable federal, state or local law or regulations; (xii) exercise its discretion or otherwise voluntarily accelerate the vesting of any Company Stock Option as a result of the Merger, any other change of control of the Company (as defined in the Company Plans) or otherwise. (j) (1) acquire, sell, lease, license, transfer or otherwise dispose of any material assets in any single transaction or series of related transactions (including in any transaction or series of related transactions having a fair market value in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate), other than sales of its products and licenses of software in the ordinary course of business consistent with past practices, (2) enter into any new employmentexclusive license, severancedistribution, consulting marketing, sales or salary continuation agreements other agreement, (3) enter into a "development services" or other similar agreement with Thinkit Technologies, Inc., or (4) sell, transfer or otherwise dispose of any Intellectual Property; (k) except as may be required as a result of a change in law or in generally accepted accounting principles, materially change any of the accounting principles, practices or methods used by it; (l) revalue in any material respect any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employeesassets, including writing down the employees value of FCA Corp., for a similar new agreement inventory or increase; (xii) settle any outstanding litigationwriting-off notes or accounts receivable, other than as set forth in Section 5.9the ordinary course of business; (xiiim) adopt(i) acquire (by merger, make consolidation or acquisition of stock or assets) any amendment corporation, partnership or other entity or division thereof or any equity interest therein; (ii) enter into any contract or agreement that would be material to the Company and its subsidiaries, taken as a whole; (iii) amend, modify or terminate waive any employee benefit plan except right under any material contract of the Company or any of its subsidiaries; (iv) modify its standard warranty terms for its products or amend or modify any product warranties in effect as of the date hereof in any material manner that is adverse to the Company or any of its subsidiaries; (v) authorize any additional or new capital expenditure or expenditures in excess of One Million Dollars ($1,000,000) in the aggregate in any calendar quarter, if any such expenditure or expenditures are not listed in the capital budget attached as Section 4.1(m)(v) of the Company Disclosure Schedule; provided that nothing in the foregoing clause (v) shall limit any capital expenditure required by law or pursuant to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit planexisting customer contracts; or (xivvi) authorize any new or additional manufacturing capacity expenditure or expenditures for any manufacturing capacity contracts or arrangements; (n) make any material tax election or settle or compromise any material income tax liability or permit any material insurance policy naming it as a beneficiary or loss-payable to expire, or to be canceled or terminated, unless a comparable insurance policy reasonably acceptable to Parent is obtained and in effect; (o) fail to file any Tax Returns when due (or, alternatively, fail to file for available extensions) or fail to cause such Tax Returns when filed to be complete and accurate in all material respects; (p) fail to pay any Taxes or other material debts when due; (q) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which would involves more than One Million Dollars ($1,000,000) or that would otherwise be material to the Company or relates to any Intellectual Property matters; (r) take any action or fail to take any action that could reasonably be expected to (i) limit the utilization of any of the net operating losses, built-in losses, tax credits or other similar items of the 25 31 Company or its subsidiaries under Section 382, 383, 384 or 1502 of the Code and the Treasury Regulations thereunder, or (ii) cause any transaction in which the Company or any of its subsidiaries was a party that was intended to be treated as a reorganization under Section 368(a) of the Code to fail to qualify as a reorganization under Section 368(a) of the Code; or (s) take or agree in writing or otherwise to take any of the foregoing actionsactions described in Sections 4.1(a) through 4.1(q) (and it shall use all reasonable efforts not to take any action that would make any of the representations or warranties of the Company contained in this Agreement (including the exhibits hereto) untrue or incorrect). Section 4.2.
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or as set forth in Schedule 6.01, during the period from the date of this Agreement until to the Effective Time, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letteras set forth in Schedule 6.01, prior to the Effective Time, neither the Company nor any of its it subsidiaries, as the case may be, will, without the prior written consent of Equity One (not to be unreasonably withheld)the Purchaser, (i) issue, sell sell, pledge or pledgeencumber, or authorize or propose the issuance, sale sale, pledge or pledge encumbrance of (A) any shares of capital stock of any class (including the shares of Common Stock), or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company Securities or Subsidiary Securities, in each caseany of its subsidiaries for such shares, other than Shares shares of Common Stock issuable upon exercise or vesting of the Rights currently outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereofOptions, or (B) any other securities in respect of, in lieu of or in substitution for Shares shares of Common Stock outstanding on the date hereof; (ii) otherwise acquire or redeem, directly purchase or indirectlyotherwise acquire, or propose to redeem, purchase or otherwise acquire, any Company Securities or Subsidiary Securities of its outstanding securities (including the Sharesshares of Common Stock); (iii) split, combine or reclassify its any shares of beneficial interest or its capital stock or declare, set aside, make declare or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make except pursuant to agreements or arrangements in effect on the date hereof which have been disclosed to the Purchaser, authorize any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of capital expenditure in excess of $50,000 in any single instance or $250,000 500,000 in the aggregate aggregate, make any acquisition or disposition of a material amount of assets (other than leases inventory) or securities, enter into or amend or terminate any contract, material to the business of the Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respectsits subsidiaries taken as a whole, or release or relinquish any contact rights or claims, material to the business of the Company and its subsidiaries taken as a whole; (2v) other than pledge or encumber any material assets of the Company except in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (vvi) incur or assume any long-term debt for borrowed money or short-term debt for borrowed money in an aggregate amount in excess of $100,000.00 except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant (including, without limitation, to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatefund working capital needs; (vivii) propose or adopt any amendments to the Articles of Incorporation or By-Laws of the Company; (viii) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries; (ix) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except Company in the ordinary course of business and consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (viix) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned loans or advances to subsidiaries of the Company) and customer loans or advances to employees in each case in excess of $50,000 in any single instance or $150,000 in the aggregateaccordance with past practices); (viiixi) change except as required by applicable laws, adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, severance, termination, employment or other employee benefit plan, agreement, trust, fund, policy or other arrangement for the benefit or welfare of the accounting any employee or tax principles, practices director or elections used by it former employee or any of its subsidiariesdirector or, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or planapplicable laws, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in increase the compensation or fringe benefits to its officersof any employee or pay any employee or pay any benefit not required by any existing plan, trust managers and employees arrangement or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increaseagreement; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to tax election or terminate settle or compromise any employee benefit plan federal, state, local or foreign income tax liability, except as required by law or to maintain tax qualified status or as requested by in the Internal Revenue Service in order to receive a determination letter for such employee benefit planordinary course of business and consistent with past practice; or (xivxiii) agree in writing or otherwise to take any of the foregoing actions. Following the date of this Agreement, the Company will review its financing documents to determine if the consent of any third party is required in connection with the transactions contemplated hereby. If following such review, the Company becomes actually aware that any such consent is required, it will so notify the Purchaser, and the parties hereto shall use their respective best efforts to secure such consent; provided, however, that for this purpose "best efforts" shall not require the Company or the Purchaser to make any payment in order to secure any such consents.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Varitronic Systems Inc)
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement and in the Disclosure Letter, during the period from the date of this Agreement until to the Effective TimeDate, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all commercially reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 5.01 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Timetime specified in the preceding sentence, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One the Parent (not to be unreasonably withheld), (i) except for issuances of capital stock of the Company's subsidiaries to the Company or a wholly-owned subsidiary of the Company, issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on or allocations or issuances pursuant to the date hereof Stock Plans or the exercise of rights under any plan Plan or any agreement referred to in Section 3.3 3.02 of the Disclosure Letter and which are outstanding on the date hereofLetter, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly wholly-owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time); (iv) (1A) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance 10,000,000 or $250,000 in the aggregate other than leases of Company Properties to tenants in more outside the ordinary and usual course of business consistent with past practice in all material respects, or (2B) other than in the ordinary course of business, enter into any Material Contract a material contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent in all material respects with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly wholly-owned subsidiaries of the Company, except in the ordinary course of business consistent in all material respects with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly wholly-owned subsidiaries of the Company) in each case the aggregate in excess of $50,000 in any single instance or $150,000 10,000,000, except in the aggregateordinary course of business consistent in all material respects with past practice; (viii) change any of the accounting principles or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accented accounting principles; (ix) adopt any amendments to the Declaration Certificate of Incorporation or Bylaws (or similar documents) of the Company or governing entity documents of any subsidiary; (x) except as as, may be required under any previously existing agreement or planPlan, grant any share stock related awards; (xi) enter into any new new, or amend any existing, employee benefit, pension or other plan (whether or not subject to ERISA), employment, severance, consulting or salary continuation agreements with any of its officers, trust managers directors or employees key employees, or grant any increases in the compensation or benefits to its officers, trust managers directors and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's key employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle enter into, amend, or extend any outstanding litigationmaterial collective bargaining or other labor agreement, other than except as set forth in Section 5.9required by law; (xiii) adopt, make any material amendment to or terminate any material employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; (xiv) merge or consolidate with or transfer all or substantially all of its assets to another corporation or other business entity or individual, (xv) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (xivxvi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Living Centers of America Inc)
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement and in the Disclosure Letter, during the period from the date of this Agreement until to the Effective TimeDate, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all commercially reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 5.01 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Timetime specified in the preceding sentence, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One the Parent (not to be unreasonably withheld), (i) except for issuances of capital stock of the Company's subsidiaries to the Company or a wholly-owned subsidiary of the Company, issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on or allocations or issuances pursuant to the date hereof Stock Plans or the exercise of rights under any plan Plan or any agreement referred to in Section 3.3 3.02 of the Disclosure Letter and which are outstanding on the date hereofLetter, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly wholly-owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time); (iv) (1A) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance 10,000,000 or $250,000 in the aggregate other than leases of Company Properties to tenants in more outside the ordinary and usual course of business consistent with past practice in all material respects, or (2B) other than in the ordinary course of business, enter into any Material Contract a material contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent in all material respects with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly wholly-owned subsidiaries of the Company, except in the ordinary course of business consistent in all material respects with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly wholly-owned subsidiaries of the Company) in each case the aggregate in excess of $50,000 in any single instance or $150,000 10,000,000, except in the aggregateordinary course of business consistent in all material respects with past practice; (viii) change any of the accounting principles or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accented accounting principles; (ix) adopt any amendments to the Declaration Restated Certificate of Incorporation or Bylaws (or similar documents) of the Company or governing entity documents of any subsidiary; (x) except as as, may be required under any previously existing agreement or planPlan, grant any share stock related awards; (xi) enter into any new new, or amend any existing, employee benefit, pension or other plan (whether or not subject to ERISA), employment, severance, consulting or salary continuation agreements with any of its officers, trust managers directors or employees key employees, or grant any increases in the compensation or benefits to its officers, trust managers directors and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's key employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle enter into, amend, or extend any outstanding litigationmaterial collective bargaining or other labor agreement, other than except as set forth in Section 5.9required by law; (xiii) adopt, make any material amendment to or terminate any material employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; (xiv) merge or consolidate with or transfer all or substantially all of its assets to another corporation or other business entity or individual, (xv) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (xivxvi) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or as set forth in Schedule 6.01, during the period from the date of this Agreement until to the Effective Time, the Company and its subsidiaries will each conduct its operations according to its their ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in this Agreement, or contemplated by this Agreement or the Disclosure Letteras set forth in Schedule 6.01, prior to the Effective Time, neither the Company nor any of its it subsidiaries, as the case may be, will, without the prior written consent of Equity One (not to be unreasonably withheld)the Purchaser, (i) issue, sell sell, pledge or pledgeencumber, or authorize or propose the issuance, sale sale, pledge or pledge encumbrance of (A) any shares of capital stock of any class (including the shares of Common Stock or Preferred Stock), or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company Securities or Subsidiary Securities, in each caseany of its subsidiaries for such shares, other than Shares shares of Common Stock issuable upon exercise or vesting of the Rights currently outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereofOptions, or (B) any other securities in respect of, in lieu of or in substitution for Shares shares of Common Stock or Preferred Stock outstanding on the date hereof; (ii) otherwise acquire or redeem, directly purchase or indirectlyotherwise acquire, or propose to redeem, purchase or otherwise acquire, any Company Securities or Subsidiary Securities of its outstanding securities (including the Shares)shares of Common Stock and Preferred Stock) or declare any dividends on Common Stock or Preferred Stock; (iii) split, combine or reclassify its any shares of beneficial interest or its capital stock or declare, set aside, make declare or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make except pursuant to agreements or arrangements in effect on the date hereof which have been disclosed to the Purchaser, authorize any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of capital expenditure in excess of $50,000 in the aggregate, make any single instance acquisition or $250,000 in the aggregate other than leases disposition of Company Properties to tenants in the ordinary a material amount of assets or securities, or, except for routine contracts with customers and usual course of business clients consistent with past practice in all practices, enter into or amend or terminate any contract, material respectsto the business of the Company and its subsidiaries taken as a whole, or release or relinquish any contact rights or claims, material to the business of the Company and its subsidiaries taken as a whole; (2v) other than pledge or encumber any material assets of the Company except in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (vvi) except for loans from Purchaser or Sub, incur or assume any long-term debt for borrowed money except or short-term debt for debt incurred borrowed money in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not an aggregate amount in excess of $50,000 in any single instance or $150,000 in the aggregate10,000; (vivii) propose or adopt any amendments to the Articles of Incorporation or By- Laws of the Company or any of its subsidiaries; (viii) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries; (ix) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except Company in the ordinary course of business and consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (viix) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned loans or advances to subsidiaries of the Company) and loans or advances to employees in each case in excess of $50,000 in any single instance or $150,000 in the aggregateaccordance with past practices); (viiixi) change except as required by applicable Laws, adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, severance, termination, employment or other employee benefit plan, agreement, trust, fund, policy or other arrangement for the benefit or welfare of the accounting any registered representative, agent, employee or tax principles, practices director or elections used by it former employee or any of its subsidiariesdirector or, except as required by applicable Laws or in the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws ordinary course of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or planbusiness, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in increase the compensation or fringe benefits to its officersof any employee or pay any employee or pay any benefit not required by any existing plan, trust managers and employees arrangement or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increaseagreement; (xii) make any tax election or settle or compromise any outstanding litigationfederal, other than as set forth state, local or foreign income tax liability, except in Section 5.9the ordinary course of business and consistent with past practice; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actionsactions or (xiv) fail to comply in all material respects with all applicable Laws. Following the date of this Agreement, the Company will review its financing documents to determine if the consent of any third party is required in connection with the transactions contemplated hereby. If following such review, the Company becomes actually aware that any such consent is required, it will so notify the Purchaser, and the parties hereto shall use their respective best efforts to secure such consent; provided, however, that for this purpose "best efforts" shall not require the Company or the Purchaser to make any payment in order to secure any such consents.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PMC International Inc)
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement until hereof to the Effective Time, the Company will, and will cause each of its subsidiaries will each to, conduct its operations according to its in the ordinary and usual course of business and consistent with past practice with no less diligence and will effort than would be applied in the absence of this Agreement, use all commercially reasonable efforts consistent with prudent business practice to preserve intact the its current business organization of the Company and each of its subsidiariesorganizations, to keep available the services service of its and their current officers and key employees and to maintain existing preserve its relationships with those customers, suppliers, distributors, lessors, creditors, employees, contractors and others having significant business relationships dealings with it with the Company intention that its goodwill and its subsidiaries, in each case in all material respectsongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or and except as described in Section 4.1 of the Company Disclosure LetterSchedule, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, subsidiaries will, without the prior written consent of Equity One Parent, which consent shall not unreasonably be withheld: (not a) amend its Certificate of Incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to be unreasonably withheld), (i) issue, sell or pledgedeliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or authorize otherwise) any stock of any class or propose any other debt or equity securities or equity equivalents (including any stock options or stock appreciation rights) except for (i) grants of options under the issuance, sale or pledge of (ACompany Plans up to the amounts set forth on Section 4.1(b) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Company Disclosure Letter and which are outstanding on the date hereofSchedule, or (Bii) any other securities in respect of, in lieu the issuance and sale of or in substitution for Shares outstanding on pursuant to options granted under the Company Plans prior to the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iiic) split, combine or reclassify its any shares of beneficial interest or its capital stock or stock, declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock or propertyproperty or any combination thereof) on in respect of its capital stock, make any shares other actual, constructive or deemed distribution in respect of beneficial interest or its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of its subsidiaries except as may be required under any Company Option or any other agreement set forth in Section 4.1(c) of the Company Disclosure Schedule; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective TimeMerger); (ive) alter through merger, liquidation, reorganization, restructuring or any other fashion the corporate structure of any subsidiary; (f) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (vi) incur or assume any long-term or short-term debt for borrowed money or issue any debt securities in each case, except for debt incurred borrowings under existing lines of credit in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant practices, or modify or agree to existing contractual arrangements as in effect on any amendment of the date hereof not in excess terms of $50,000 in any single instance or $150,000 in of the aggregateforegoing; (viii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned for obligations of subsidiaries of the Company, except Company incurred in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractices; (viiiii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, to or investments in, in any other person (other than wholly owned to subsidiaries of the Company) Company or customary loans or advances to employees in each case in excess the ordinary course of $50,000 in any single instance or $150,000 in the aggregatebusiness consistent with past practice); (viiiiv) change any pledge or otherwise encumber shares of capital stock of the accounting or tax principles, practices or elections used by it Company or any of its subsidiaries; or (v) mortgage or pledge any of its material assets, except as required by the SEC tangible or required by United States generally accepted accounting principlesintangible, or create or suffer to exist any material Lien thereupon; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (xg) except as may be required under by Applicable Law, enter into, adopt or amend or terminate any previously existing agreement or planbonus, grant any share related awards; (xi) enter into any new employmentspecial remuneration, compensation, severance, consulting stock option, stock purchase agreement, retirement, health, life, or salary continuation agreements with disability insurance, severance or other employee benefit plan agreement, trust, fund or other arrangement for the benefit or welfare of any of its officersdirector, trust managers officer, employee or employees consultant in any manner or grant increase in any increases in manner the compensation or fringe benefits to its officersof any director, trust managers officer or employee or pay any benefit not required by any plan and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, arrangement as in effect as of the date hereof (including the employees granting of FCA Corp.stock appreciation rights or performance units), for a similar new agreement or increase; (xii) settle any outstanding litigation, other than except as set forth in Section 5.94.1(g) of the Company Disclosure Schedule; (xiiih) adoptgrant any severance or termination pay to any director, make any amendment officer, employee or consultant, except payments made pursuant to written agreements outstanding on the date hereof, the material terms of which are disclosed on Section 4.1(h) of the Company Disclosure Schedule or terminate any employee benefit plan except as required by applicable federal, state or local law or regulations; (i) except as set forth in Section 4.1(i) of the Company Disclosure Schedule, exercise its discretion or otherwise voluntarily accelerate the vesting of any Company Stock Option as a result of the Merger, any other change of control of the Company (as defined in the Company Plans) or otherwise. (j) (1) acquire, sell, lease, license, transfer or otherwise dispose of any material assets in any single transaction or series of related transactions (including in any transaction or series of related transactions having a fair market value in excess of Two Hundred Thousand Dollars ($200,000) in the aggregate), other than sales of its products and licenses of software in the ordinary course of business consistent with past practices, (2) enter into any exclusive license, distribution, marketing, sales or other agreement, (3) enter into any agreement with a person whereby such person would provide product development or similar services if the term of such agreement exceeds forty-five (45) days or provides for payments that could exceed Fifty Thousand Dollars ($50,000) for any single agreement or One Hundred Thousand Dollars ($100,000) for all such agreements, or (4) sell, transfer or otherwise dispose of any Intellectual Property; (k) except as may be required as a result of a change in law or in generally accepted accounting principles, materially change any of the accounting principles, practices or methods used by it; (l) revalue in any material respect any of its assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices; (m) (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other entity or division thereof or any equity interest therein; (ii) enter into any contract or agreement that would be material to maintain tax qualified status the Company and its subsidiaries, taken as a whole other than a non-exclusive license agreement or a service agreement with end-users entered into in the ordinary course of business consistent with past practices; (iii) amend, modify or waive any material right under any material contract of the Company or any of its subsidiaries; (iv) modify its standard warranty terms for its products or amend or modify any product warranties in effect as requested by of the Internal Revenue Service date hereof in order any material manner that is adverse to receive a determination letter for the Company or any of its subsidiaries; (v) authorize any additional or new capital expenditure or expenditures in excess of Two Hundred Thousand Dollars ($200,000) in the aggregate in any calendar quarter, if any such employee benefit planexpenditure or expenditures are not listed in the capital budget attached as Section 4.1 (m)(v) of the Company Disclosure Schedule; provided that nothing in the foregoing clause (v) shall limit any capital expenditure required pursuant to existing customer contracts; or (xivvi) authorize any new or additional manufacturing capacity expenditure or expenditures for any manufacturing capacity contracts or arrangements; (n) make or revoke any material tax election or settle or compromise any material income tax liability or permit any material insurance policy naming it as a beneficiary or loss-payable to expire, or to be canceled or terminated, unless a comparable insurance policy reasonably acceptable to Parent is obtained and in effect; (o) fail to file any Tax Returns when due (or, alternatively, fail to file for available extensions) or fail to cause such Tax Returns when filed to be complete and accurate in all material respects; (p) fail to pay any material Taxes or other material debts when due; (q) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of suits, actions, or claims which would involve more than One Hundred Thousand Dollars ($100,000) in the aggregate, or that would otherwise be material to the Company or relates to any Intellectual Property matters, provided that the Company may settle the dispute with Summit Software for up to the amount disclosed in Section 4.1(q) of the Company Disclosure Schedule; (r) take any action or fail to take any action that could reasonably be expected to (i) limit the utilization of any of the net operating losses, built-in losses, tax credits or other similar items of the Company or its subsidiaries under Section 382, 383, 384 or 1502 of the Code and the Treasury Regulations thereunder, or (ii) cause any transaction in which the Company or any of its subsidiaries was a party that was intended to be treated as a reorganization under Section 368(a) of the Code to fail to qualify as a reorganization under Section 368(a) of the Code; or (s) other than licensing and distribution contracts and agreements with end-user customers entered into in the ordinary course of business consistent with past practice, enter into any licensing, distribution, sponsorship, advertising or other similar contracts, agreements, or obligations which may not be canceled without penalty by the Company or its subsidiaries upon notice of 45 days or less or which provide for payments by or to the Company or its subsidiaries in an amount in excess of One Hundred Thousand Dollars ($100,000) over the term of the agreement; (t) Take any action, or omit to take any action, that would be reasonably likely to interfere with Parent's ability to account for the Merger as a pooling of interests, whether or not otherwise permitted by the provisions of this Article 4; (u) Fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (v) Engage in any willful action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; or (w) take or agree in writing or otherwise to take any of the foregoing actionsactions described in Sections 4.1(a) through 4.1(v) (and it shall use all reasonable efforts not to take any action that would make any of the representations or warranties of the Company contained in this Agreement (including the exhibits hereto) untrue or incorrect). Section 4.2.
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement and in the Disclosure Letter, during the period from the date of this Agreement until to the Effective TimeDate, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all commercially reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 5.01 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Timetime specified in the preceding sentence, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One the Parent (not to be unreasonably withheld), (i) except for issuances of capital stock of the Company's subsidiaries to the Company or a wholly-owned subsidiary of the Company, issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on or allocations or issuances pursuant to the date hereof Stock Plans or the exercise of rights under any plan Plan or any agreement referred to in Section 3.3 3.02 of the Disclosure Letter and which are outstanding on the date hereofLetter, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.the
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chase Equity Associates L P)
Conduct of Business of the Company. Except as contemplated by this Agreement--- ---------------------------------- Agreement or as disclosed in writing to the Investors in Schedule 4.1, during ------------ the period from the date of this Agreement until to the Effective Timedate five business days after the Stockholder Meeting, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or as disclosed in writing to the Disclosure Letter, Investors prior to the Effective Timedate five business days after the Stockholder Meeting, neither the Company nor any of its subsidiaries, as the case may be, willsubsidiaries shall, without the prior written consent of Equity One (not to be unreasonably withheld)the Investors, (ia) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (Ai) additional shares of capital stock of any class, or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company Securities or Subsidiary Securities, in each casefor shares, other than Shares (A) shares of Common Stock issuable upon exercise or vesting pursuant to the terms of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to Stock Options and commitments disclosed in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof2.2, or (B) issuance of shares of capital stock to the Company by a wholly owned subsidiary of the Company, or (ii) any other securities in respect of, in lieu of or in substitution for Shares shares of Common Stock outstanding on the date hereofthereof; (iib) purchase or otherwise acquire acquire, or redeem, directly propose to purchase or indirectlyotherwise acquire, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify of its shares of beneficial interest or outstanding capital stock or declare, set aside, make other equity or debt securities; (c) declare or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company, except that a direct or indirect wholly owned subsidiary of the Company may pay a dividend to its parent; (d) make any acquisition of a material amount of assets (other than capital expenditures in accordance with the Company's existing budget not in excess of $100,000 for any single expenditure) or securities, any disposition (including by way of mortgage, license, encumber or any Lien) of a material amount of assets or securities, or enter into a material contract (except for entering into new contracts involving amounts under $5,000,000 in the ordinary course of business) or release or relinquish any material contract rights not in the ordinary course of business, or make any amendments, or modifications thereto; (e) (i) incur any indebtedness for borrowed money (other than takedowns under the Company's existing credit facility) 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 (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) providedsubsidiaries, however, that the Company may declare and pay one regular quarterly dividend to shareholders guarantee any debt securities of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of businessanother person, enter into any Material Contract "keep well" or grant other agreement to maintain any release financial statement condition of another person or relinquishment enter into any arrangement having the economic effect of any material contract rightsof the foregoing or (ii) make any loans, advances of 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; (vf) incur pay, discharge, settle or assume satisfy any long-term debt for borrowed money except for debt incurred claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as or in effect on the date hereof not in excess accordance with their terms, of workers compensation claims under $50,000 in any single instance or claims by or against customers involving amounts under $150,000 in the aggregate200,000; (vig) assume, guarantee, endorse propose or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration Certificate of Incorporation, as amended, or Bylaws of the Company (or governing entity any such similar organizational documents of any subsidiaryits subsidiaries), except as contemplated hereby; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xih) enter into any new employment, severance, consulting or salary continuation employment agreements with any of its officers, trust managers directors or key employees or grant any material increases in the compensation or benefits to its officers, trust managers directors and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's key employees, including the employees of FCA Corp., for a similar new agreement or increase; (xiii) settle take any outstanding litigation, other than as of the actions set forth in Section 5.92.5 not otherwise specified herein; (xiiij) adopt, settle the terms of any litigation affecting the Company or any of its subsidiaries; (k) make any amendment tax election or settle or compromise any income tax liability; (l) make or agree to or terminate make any employee benefit plan except as required by law or to maintain tax qualified status or as requested by new capital expenditures (other than capital expenditures in accordance with the Internal Revenue Service Company's existing budget not in order to receive a determination letter excess of $100,000 for such employee benefit planany single expenditure); or (xivm) agree in writing or otherwise to take any of the foregoing actionsactions or any action which would make any representation or warranty in this Agreement untrue or incorrect.
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or to the extent that Parent shall otherwise consent in writing, during the period from the date of this Agreement until to the Effective Time, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will the Company shall use all reasonable efforts consistent with prudent business practice to preserve intact in all material respects the business organization of the Company and each of its subsidiariesCompany, use reasonable efforts to keep available the services of its and their current officers and key employees employees, and use reasonable efforts to maintain existing relationships with preserve in all material respects the good will of those having significant advantageous business relationships with the Company it and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Timeextent that Parent shall otherwise consent in writing, neither the Company nor any of its subsidiaries, as the case may be, willshall, without the prior written consent of Equity One (not to be unreasonably withheld), Parent: (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of of: (A) additional shares of capital stock of any class (including the Shares), or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company Securities or Subsidiary Securities, in each casefor Shares, other than (1) Shares issuable upon exercise pursuant to the terms of outstanding options and commitments disclosed pursuant to Section 5.3, or vesting (2) the issuance of shares of capital stock to the Company by a wholly owned subsidiary of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, Company; or (B) any other securities in respect of, in lieu of or in substitution for the Shares outstanding on the date hereofthereof; (ii) purchase or otherwise acquire acquire, or redeem, directly propose to purchase or indirectlyotherwise acquire, any Company Securities or Subsidiary Securities of its outstanding securities (including the Shares); (iii) split, combine or reclassify its any shares of beneficial interest or its capital stock or stock, declare, set aside, make aside or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means acquisition of a merger material amount of assets (by merger, consolidation or otherwiseacquisition of stock or assets) or securities, any disposition of a material amount of assets or securitiessecurities or any material change in its capitalization, or enter into a material contract or release or relinquish any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 material contract rights not in the aggregate ordinary course of business (except as permitted pursuant to Section 6.2 of this Agreement); (v) intentionally incur any liability or obligation (absolute, accrued, contingent or otherwise) other than leases of Company Properties to tenants in the ordinary and usual course of business and either consistent with past practice or in all material respects, or the reasonable business judgment of the officers of the Company (2) other than including borrowing in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in loan agreements or debt instruments) or issue any single instance debt securities or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise as an accommodation become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities individual or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 entity in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in an amount material to the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of Company and its subsidiaries, except taken as required by the SEC or required by United States generally accepted accounting principlesa whole; (ixvi) propose or adopt any amendments to the Declaration Certificate of Incorporation or Bylaws By-Laws of the Company or governing entity documents of any subsidiaryCompany; (xvii) except as may be required under make any previously existing agreement change in accounting methods, principles or plan, grant any share related awardspractices; (xiviii) other than as contemplated or permitted by this Agreement: (A) enter into any new employment, severance, consulting or salary continuation employment agreements with any of its officers, trust managers directors or key employees or grant any material increases in the compensation or benefits to its officers, trust managers directors and key employees or otherwise reimburse other than increases in the ordinary course of business and consistent with past practice; (B) pay or agree to reimburse pay any property manager pension, retirement allowance or such property manager's employeesother employee benefit not required or permitted by any existing plan, including the employees of FCA Corp., for a similar new agreement or increasearrangement to any such director, officer or key employee in amounts material to the Company and its subsidiaries, taken as a whole; (xiiC) settle any outstanding litigation, commit itself (other than as set forth in Section 5.9; (xiiipursuant to any collective bargaining agreement) adoptto any additional pension, make any amendment to profit-sharing bonus, extra compensation, incentive, defined compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or terminate any other employee benefit plan plan, agreement or arrangement, or to any employment or consulting agreement with or for the benefit of any director, officer or key employee, whether past or present, in amounts material to the Company and its subsidiaries, taken as a whole; or (D) except as required by law applicable law, amend in any material respect any such plan, agreement or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit planarrangement; or (xivix) agree in writing or otherwise to take any of the foregoing actionsactions or any action which would make any representation or warranty in this Agreement untrue or incorrect.
Appears in 1 contract
Conduct of Business of the Company. (a) Except as provided in Section 4.2(b), during the period from the date of this Agreement through the Effective Time, (i) the Company shall conduct its business, and shall cause each of its subsidiaries to conduct its business, in the ordinary and usual course consistent with past practice and (ii) the Company shall use, and shall cause each of its subsidiaries to use, all commercially reasonable efforts to maintain and preserve intact its business organization, to keep available the services of its officers and employees and to maintain satisfactory relations with lessors, suppliers, contractors, distributors, customers and others having business relationships with the Company or any of its subsidiaries (it being recognized, however, that nothing in this Agreement shall be construed to hold the Company liable for any adverse effect that the announcement of the transactions contemplated by this Agreement may have on such business organizations and relationships, including on decisions of officers and employees whether to continue to provide services to the Company or its subsidiaries). (b) Except as expressly contemplated by this Agreement, during the period from the date of this Agreement until through the Effective Time, the Company shall not do, and shall not permit any of its subsidiaries will each conduct its operations according to its ordinary do, any of the following, without PacifiCare's prior written consent: (i) declare, set aside or pay any dividend or make any other distribution in respect of any capital stock, except (A) regular dividends on the Company Series A Preferred Stock and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact (B) dividends from the business organization subsidiaries of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiariessufficient to allow the Company to make the dividends referred to in clause (A); (ii) split, in each case in all material respects. Without limiting the generality combine or reclassify any capital stock of the foregoingCompany or repurchase, except as set forth in Section 5.1 redeem or otherwise acquire any capital stock of the Disclosure Letter and except as otherwise expressly provided in Company or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as except pursuant to contractual rights in existence on the case may be, will, without date of the prior written consent Original Agreement; (iii) except for (x) the issuance of Equity One (not up to 900,000 Xxxxxxx stock options to be unreasonably withheld)granted to Xxxxxxx employed or managed physicians in connection with the separation of Xxxxxxx from the Company, (iy) the issuance of up to 10,000 Company Options per individual and the issuance of up to 75,000 Company Options in the aggregate to be granted in connection with the Company's new hires, outstanding performances or promotions, or (z) previously authorized automatic grants of Company Options to the Company's or its subsidiaries' directors, issue, deliver, pledge, encumber, sell or pledgetransfer, or authorize or propose the issuance, delivery, pledge, encumbrance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect transfer of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries or any securities convertible into, or rights, warrants or options to acquire, any such shares of capital stock or other 29 convertible securities (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, except that the Company may declare issue Company Common Stock upon the exercise of Company Options issued and pay one regular quarterly dividend outstanding or upon the conversion of Company Series A Preferred Stock into Company Common Stock), or, except as expressly contemplated herein, make any change in its equity capitalization or to shareholders the terms of record as of a date no later than September 15any option, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion warrant or other equity security of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date or any of its subsidiaries that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Timeis currently outstanding; (iv) (1) make except as expressly contemplated herein, amend the Certificate of Incorporation, Bylaws or other organizational or charter documents of the Company or any acquisition, by means of a merger or otherwise, of assets or securitiesits subsidiaries, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rightsamend its Restated Rights Plan; (v) incur acquire (by merging or assume consolidating with, by purchasing any long-term debt for borrowed money except for debt incurred in material portion of the ordinary course capital stock or assets of or by any other means) any business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in or any single instance corporation, partnership, association or $150,000 in the aggregateother business organization or division thereof; (vi) assumesell, guaranteelease, endorse pledge or otherwise become liable dispose of or responsible (whether directly, contingently or otherwise) for the obligations encumber any of any other person except wholly owned subsidiaries of the Companyits material assets, except in the ordinary course of business consistent with past practice and except in connection or consistent with liabilities or responsibilities that may be incurred pursuant written disclosure made to existing contractual arrangements in effect on PacifiCare prior to the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregateOriginal Agreement; (vii) except pursuant to lines of credit and subject to credit limits in connection with transactions permitted by (iv) aboveeffect prior to the date of the Original Agreement, make incur any loans, advances or capital contributions toindebtedness for borrowed money, or investments inissue or sell any debt securities or guarantee, endorse or otherwise become responsible for any obligation of any other person (other than wholly owned subsidiaries person, provided that this Section 4.2(b)(vii) shall not apply to indebtedness for borrowed money, debt securities or guaranties that aggregate up to $20,000,000 or the proceeds of the Company) which are used to capitalize Xxxxxxx in each case in excess of $50,000 in any single instance or $150,000 in the aggregateaccordance with Section 4.15; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required specifically contemplated by the SEC Section 4.8, adopt or required by United States generally accepted accounting principlesamend in any material respect any collective bargaining agreement or Company Employee Plan, or enter into or amend any employment agreement, severance agreement, special pay arrangement with respect to termination of employment or other similar arrangement or agreement with any director or officer, or enter into or amend any severance or termination arrangement with any director or officer; (ix) adopt change in any amendments to material respect the Declaration accounting methods or Bylaws of practices followed by the Company (including any material change in any assumption underlying, or governing entity documents any method of calculating, any subsidiarybad debt, contingency or other reserve), except as may be required by changes in GAAP; (x) except in the ordinary course of business consistent with past practice or as may be required under permitted in Section 4.4(a), enter into any previously existing material contract or agreement or plan, grant any share related awardsinvolving payments in excess of market rates; (xi) enter into except as specifically contemplated by Section 4.8, change any new employment, severance, consulting compensation payable or salary continuation agreements with to become payable to any of its officers, trust managers officers or employees or grant (other than any increases adjustment to the salary of any employee that is made in the compensation ordinary course of business consistent with past practice and that does not exceed the higher of 6% of such employee's previous salary or benefits to its officers, trust managers and employees $10,000 or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for that is made in accordance with a similar new agreement or increasebudget approved in writing by PacifiCare); (xii) settle make any outstanding litigationcapital expenditures in excess of $2,500,000 in the aggregate, other than as except those set forth in Section 5.9a budget to be reviewed and approved by PacifiCare and the Company within two weeks following the date of the Original Agreement; (xiii) adopt, make any amendment loan to or terminate engage in any employee benefit plan except as required by law transaction with any director or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit planofficer; or (xiv) agree in writing settle or otherwise to take compromise any lawsuit or other Proceeding against the Company or any of its subsidiaries for an amount in excess of $5,000,000; provided, however, that in no event shall the foregoing actions.Company or its subsidiaries settle or compromise any matter in a manner which would have a material non-financial adverse impact on the Company or its Material Subsidiaries; 30
Appears in 1 contract
Samples: Amended And (Talbert Medical Management Holdings Corp)
Conduct of Business of the Company. Except as contemplated otherwise provided for in this Agreement or the Recapitalization and Stock Purchase Agreement or agreed to by this Agreementthe Company, during Buyer and the period from Stockholders in writing, the Company covenants and agrees as to itself and each of its subsidiaries that between the date of this Agreement until and the Effective TimeClosing, it shall carry on its respective businesses in the Company usual, regular and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and course, consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor either of its subsidiaries shall, between the date of this Agreement and the Closing, directly or indirectly, do any of its subsidiaries, as the case may be, will, following without the prior written consent of Equity One Buyer and the Stockholders except as provided for in this Agreement or the Recapitalization and Stock Purchase Agreement: (not to be unreasonably withheld), a) (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declareDeclare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, or property or any combination thereof) in respect of any of its capital stock or propertymake any other payment to a stockholder of the Company in such person's capacity as a stockholder of the Company, (ii) on split, combine, reclassify or subdivide any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its capital stock; (b) Authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any shares of beneficial interest stock of any class or any other securities or equity equivalents, other than the issuance of capital stock pursuant to the Recapitalization and Stock Purchase Agreement, including in connection with the exercise of Employee Options outstanding as of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Timethis Agreement; (ivc) (1) make any acquisitionAcquire, by means of a merger or otherwise, of assets or securities, or any salesell, lease, encumbrance transfer or other disposition dispose of any assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract except pursuant to obligations or grant any release or relinquishment of any material contract rightscapital expenditure programs in effect on the date hereof; (vd) incur or assume any long-term debt for borrowed money except for debt incurred Except in the ordinary course of business consistent with past practice and except for debt that may be incurred or pursuant to existing contractual arrangements as working capital credit facilities in effect existence on the date hereof not in excess of $50,000 in hereof, incur any single instance long-term indebtedness for borrowed money, guarantee any indebtedness, issue or $150,000 in the aggregate; sell debt securities or warrants or rights to acquire any debt securities, guarantee (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwisepotentially liable for) for the obligations any debt of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) aboveothers, make any loans, advances or capital contributions tocontributions, mortgage, pledge or otherwise encumber any material assets, or investments in, create or suffer any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.material Lien thereupon;
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or with the prior written consent of the Parent, during the period from the date of this Agreement until to the Effective Time, the Company will, and its subsidiaries will cause each of the Company Subsidiaries to, conduct its operations according to its only in the ordinary and usual course of business and consistent with past practice and will use all its reasonable best efforts consistent with prudent business practice to, and to cause each Company Subsidiary to, preserve intact the business organization of the Company and each of its subsidiariesthe Company Subsidiaries, to keep available the services of its and their current the present officers and key employees of the Company and the Company Subsidiaries, and to maintain existing relationships with those preserve the good will of customers, suppliers and all other persons having significant business relationships with the Company and its subsidiaries, in each case in all material respectsthe Company Subsidiaries. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or disclosed in the Company Disclosure Letter, prior to the Effective Time, neither the Company nor will not, and will not permit any of its subsidiaries, as the case may be, willCompany Subsidiary to, without the prior written consent of Equity One the Parent: (not a) adopt any amendment to be unreasonably withheld)the Company Charter Documents or the comparable organizational documents of any Company Subsidiary; (b) except for issuances of capital stock of Company Subsidiaries to the Company or a wholly owned Company Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) issue, sell or pledgeadditional shares of capital stock of any class, or authorize securities convertible into capital stock of any class, or propose the issuanceany rights, sale warrants or pledge of (A) Company Securities options to acquire any convertible securities or Subsidiary Securities, in each casecapital stock, other than Shares issuable upon exercise or vesting the issue of Company Shares, in accordance with the terms of the Rights outstanding instruments governing such issuance as in effect on the date hereof or and described in Section 3.3(b) of the Company Disclosure Letter, and pursuant to the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are Company Stock Options outstanding on the date hereof, or (Bii) any other securities in respect of, in lieu of of, or in substitution for for, Company Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.;
Appears in 1 contract
Samples: Agreement and Plan of Merger Agreement and Plan of Merger (Westower Corp)
Conduct of Business of the Company. Except as contemplated by this Agreement, during During the period from the date of this Agreement and continuing until the Effective Timeearlier of the termination of this Agreement and the Closing (the "Pre-Closing Period"), the Company and shall carry on its subsidiaries will each conduct its operations according business in the ordinary course in substantially the same manner as conducted prior to its ordinary and usual course the date of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to this Agreement, shall preserve intact the its present business organization of the Company and each of its subsidiariesorganizations, to keep available the services of its present service providers and their current officers and key employees and to maintain existing preserve its relationships with those present and potential customers, partners, suppliers, distributors, landlords, creditors, licensors, licensees and others having significant present or potential business relationships with it. For the avoidance of doubt, during the Pre-Closing Period, the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, willshall not, without the prior written consent approval of Equity One (not to be unreasonably withheld)Parent, (ia) issue, deliver or sell or pledge, or authorize or propose the issuance, delivery or sale of or pledge authorization of (A) the purchase of, any shares of Company Securities Capital Stock or Subsidiary Securitiessecurities convertible into, in each caseor subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than Shares issuable the issuance of shares of Company Capital Stock pursuant to the Company's obligations under the Cornerstone Agreement, the issuance of shares of Company Series B Common Stock upon the exercise or vesting of the Rights Company Options outstanding on the date hereof or of this Agreement and the exercise issuance of rights under any plan or any agreement referred to shares of Company Series B Preferred Stock in connection with the Note Conversion (as defined in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B5.3(b) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Sharesbelow); (iiib) splitmake any change with respect to its personnel, combine provide for any increases in or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock modification of the compensation or severance or other benefits payable or to become payable to such individuals or terminate the employment of any employees; or (c) make any change with respect to any Company or any of its subsidiaries (other than cash dividends paid to Employee Plan. During the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further thatPre-Closing Period, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment shall promptly notify Parent of any material contract rights; (v) incur event or assume any long-term debt for borrowed money except for debt incurred occurrence not in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course and any circumstance, change, event or effect of business consistent any character that has had or would reasonably be expected to have a Material Adverse Effect with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant respect to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Newlink Genetics Corp)
Conduct of Business of the Company. Except as contemplated by this Agreement, during During the period from the date of this Agreement until to the Effective TimeSecond Closing Date, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and Subsidiaries shall conduct their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One (not to be unreasonably withheld), (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard respective operations only according to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice and use their commercially reasonable best efforts to preserve intact their respective business organizations, keep available the services of their officers and employees and maintain satisfactory relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with them. Notwithstanding the immediately preceding sentence, prior to the Second Closing Date, except as may be first approved in all material respectswriting by the Acquiror or as is otherwise permitted or required by this Agreement, the Company and each of its Subsidiaries shall (a) refrain from amending or modifying the Company's and each of its Subsidiaries' respective Articles of Incorporation and/or By-Laws (2or equivalent governing documents) other than except as provided in clause (g) below, (b) refrain from increasing beyond the levels in effect on the date of this Agreement the compensation payable or to become payable by the Company and each of its Subsidiaries to any officer, employee or agent being paid or who would be paid $60,000 per year or more on the Company Balance Sheet Date, except for increases which are determined by the Company or its Subsidiaries at year-end to be in the best interests of the Company and are made in the ordinary course of businessbusiness and are consistent with past practice, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (vc) incur or assume any long-term debt for borrowed money except for debt incurred (i) year-end bonuses to employees, other than the executives listed on SCHEDULE 6.1(C) hereto, in the ordinary course of business consistent with past practice of the Company and each of its Subsidiaries and (ii) Bonus Payments to those Company's executives listed on SCHEDULE 6.1(C) hereto, refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any such persons except for debt those that may be incurred pursuant have already been accrued (all such permitted Bonus Payments and bonus payments in respect of 1997 and that portion of 1998 prior to existing contractual arrangements the Second Closing Date shall have been declared and, if not paid, accrued and reflected as in effect a reduction on the date hereof not in excess of $50,000 in Company's Preliminary Closing Balance Sheet), (d) refrain from entering into any single instance contract or $150,000 in the aggregate; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person commitment except wholly owned subsidiaries of the Company, except contracts in the ordinary course of business consistent with past practice practice, (e) refrain from making any change affecting any bank, safe deposit or power of attorney arrangements of the Company or any such Subsidiary without notifying Acquiror of any such change, (f) refrain from taking any of the actions of the type referred to in Section 3.24 (except as expressly permitted thereby), (g) refrain from issuing or selling any shares of capital stock or any other securities or issuing any securities convertible into, or option, warrants or rights to purchase or subscribe to, or entering into any arrangement or contract with respect to the issue and sale of, any shares of its capital stock or any other securities, or making any other changes in its capital structure, except that the Company may amend its Certificate of Incorporation to authorize classes of common stock having the rights set forth in connection the proposed form of amendment to the Company's Certificate of Incorporation attached hereto as Exhibit J and may issue pro rata to each of the Shareholders, Class B Common Stock upon the terms and having the rights set forth in such proposed form of amendment, (h) refrain from declaring, setting aside, making or paying any distribution in redemption of stock or a dividend, payable in cash, stock, property or otherwise, with liabilities or responsibilities that may be incurred pursuant respect to existing contractual arrangements any class of the capital stock of the Company, except Class B Common Stock and for a distribution in effect on the date hereof cash not in excess of $50,000 2,500,000 (less any cash fees paid by the Company to First Stanford and DNB pursuant to the Consulting Agreement) plus any amounts distributed pursuant to Section 2.2(c)(iii) in any single instance or $150,000 redemption of Common Stock immediately preceding the Acquisition and, in the aggregate; (vii) event that the Class B Common Stock has not been distributed, except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries for the possible distribution of the Companystock of or interests in or assets of Marine LNG I, Inc. and/or Marine LNG II, Inc. or proceeds from the sale of such stock or assets and (i) refrain from agreeing in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change writing to do any of the accounting foregoing. During the period from the date of this Agreement to the Second Closing Date, the Company shall confer on a regular and frequent basis with one or tax principles, practices or elections used by it or any more designated representatives of the Acquiror to report material operational matters and to report the general status of ongoing operations. The Company and each of its subsidiariesSubsidiaries shall notify the Acquiror of any unexpected emergency or other change in the normal course of its business or in the operation of its properties and of any governmental complaints, except as required by investigations or hearings (or communications indicating that the SEC same may be contemplated), adjudicatory proceedings, budget meetings or required by United States generally accepted accounting principles; (ix) adopt submissions involving any amendments to the Declaration or Bylaws material property of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any and each of its officersSubsidiaries, trust managers or employees or grant any increases and keep the Acquiror fully informed of such events and permit its representatives prompt access to all materials prepared in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actionsconnection therewith.
Appears in 1 contract
Samples: Acquisition Agreement (Omi Corp)
Conduct of Business of the Company. Except as expressly contemplated by this AgreementAgreement or as set forth in Section 5.1 of the Company Disclosure Schedule, during the period from the date of this Agreement until to the Effective Time, the Company will, and will cause each of its subsidiaries will each Subsidiaries to, conduct its respective operations according to its ordinary and usual course of business and consistent with past practice and will 16 use all reasonable efforts consistent with prudent business practice to (i) preserve intact the its business organization of the Company and each of its subsidiariesorganizations' goodwill, to (ii) keep available the services of its and their current present officers and key employees employees, and to maintain existing relationships with those having significant (iii) preserve the goodwill and business relationships with the Company suppliers, distributors and its subsidiaries, in each case in all material respectsothers having business relationships with it. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement or as set forth in Section 5.1 of the Company Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure LetterSchedule, prior to the Effective Time, neither the Company nor any of will not, and the Company will cause its subsidiaries, as the case may be, willSubsidiaries not to, without the prior written consent of Equity One Parent (such consent, except in the cases of clauses (a), (h) and (i) below, not to be unreasonably withheld), ): (ia) issue, sell sell, pledge or pledgeotherwise dispose of, grant or otherwise create any additional shares of, or authorize or propose the issuance, sale sale, pledge, disposal, grant or pledge creation of (A) any shares of capital stock of the Company Securities and its Subsidiaries, or Subsidiary Securitiessecurities convertible into or exchangeable for such shares, in each caseor any rights, warrants or options to acquire such shares or other convertible or exchangeable securities, other than the issuance of Shares issuable upon pursuant to the exercise of Options or vesting of the Rights Warrants as outstanding on the date hereof or otherwise issuable pursuant to the exercise of rights under any plan or any agreement referred to in Section 3.3 automatic grant provisions of the Disclosure Letter and which are outstanding 1996 Plan as in effect on the date hereof, relating to director options; (b) purchase, redeem or (B) otherwise acquire or retire, or offer to purchase, redeem or otherwise acquire or retire, any shares of its capital stock, other securities than in respect of, transactions between the Company and its wholly-owned subsidiaries and any required repurchases of options or stock upon termination of employment to the extent required by agreements in lieu of or in substitution for Shares outstanding effect on the date hereof; (iic) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether distribution, payable in cash, stock stock, property or property) otherwise, on any shares of beneficial interest or its capital stock (other than dividends paid by wholly-owned Subsidiaries of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time); (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2d) other than in the ordinary course of businesswith respect to intercompany payables and receivables and intercompany debt, enter into incur or become contingently liable with respect to any Material Contract indebtedness or grant any release or relinquishment guarantee of any material contract rights; (v) incur indebtedness or assume issue any long-term debt for borrowed money except for debt securities other than indebtedness incurred to finance working capital requirements in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatepractice; (vie) assumemerge, guarantee, endorse consolidate with or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of consummate any other business combination with any person except wholly owned subsidiaries or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the Companyassets of, except or by any other manner, any business or any corporation, partnership, association or other business entity; (f) sell, lease, license (other than exhibition licenses entered into in the ordinary course of business consistent with past practice practice), mortgage, transfer or otherwise dispose of any properties or assets which are material to the Company and its Subsidiaries, taken as a whole; (g) except as disclosed in Section 5.1 of the Company Disclosure Schedule or as may be required by applicable law or by contracts existing as of the date hereof, (i) increase the compensation payable or to become payable to its officers or employees, except for non-officer employees and production and talent personnel, increases in the ordinary course of business consistent with past practice; (ii) enter into any written employment agreement with any employee, except in connection the ordinary course of business which, in any event, shall be terminable, without penalty, on not more than six months notice; (iii) grant any severance or termination pay to any director, officer or employee inconsistent with liabilities Company policy; or responsibilities that may be incurred pursuant (iv) establish, adopt, enter into, terminate, withdraw from or amend in any material respect or take any action to accelerate any rights or benefits under any collective bargaining agreement, any stock option plan, or any material Benefit Plan; (h) enter into any programming commitment other than in the ordinary course of business consistent with past practice; (i) enter into any local marketing, joint marketing or similar agreements, modify or amend any such existing contractual arrangements agreements on terms less favorable to the Company than such existing agreements, if such terms would, individually or in effect on the date hereof not aggregate, have a Company Material Adverse Effect; (j) incur any commitments for capital expenditures (as such term is used in accordance with generally accepted accounting principles) in excess of $50,000 10,000,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.twelve month period. 17
Appears in 1 contract
Samples: Agreement and Plan of Merger (Telemundo Holding Inc)
Conduct of Business of the Company. Except as contemplated by this Agreement--- ---------------------------------- Agreement or as disclosed in writing to the Investors in Schedule 4.1, during ------------ the period from the date of this Agreement until to the Effective Timedate five business days after the Stockholder Meeting, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respectspractice. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or as disclosed in writing to the Disclosure Letter, Investors prior to the Effective Timedate five business days after the Stockholder Meeting, neither the Company nor any of its subsidiaries, as the case may be, willsubsidiaries shall, without the prior written consent of Equity One (not to be unreasonably withheld)the Investors, (ia) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (Ai) additional shares of capital stock of any class, or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or grant or accelerate any right to convert or exchange any securities of the Company Securities or Subsidiary Securities, in each casefor shares, other than Shares (A) shares of Common Stock issuable upon exercise or vesting pursuant to the terms of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to Stock Options and commitments disclosed in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof2.2, or (B) issuance of shares of capital stock to the Company by a wholly owned subsidiary of the Company, or (ii) any other securities in respect of, in lieu of or in substitution for Shares shares of Common Stock outstanding on the date hereofthereof; (iib) purchase or otherwise acquire acquire, or redeem, directly propose to purchase or indirectlyotherwise acquire, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify of its shares of beneficial interest or outstanding capital stock or declare, set aside, make other equity or debt securities; (c) declare or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company, except that a direct or indirect wholly owned subsidiary of the Company may pay a dividend to its parent; (d) make any acquisition of a material amount of assets (other than capital expenditures in accordance with the Company's existing budget not in excess of $100,000 for any single expenditure) or securities, any disposition (including by way of mortgage, license, encumber or any Lien) of a material amount of assets or securities, or enter into a material contract (except for entering into new contracts involving amounts under $5,000,000 in the ordinary course of business) or release or relinquish any material contract rights not in the ordinary course of business, or make any amendments, or modifications thereto; (e) (i) incur any indebtedness for borrowed money (other than takedowns under the Company's existing credit facility) 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 (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided-18- subsidiaries, however, that the Company may declare and pay one regular quarterly dividend to shareholders guarantee any debt securities of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of businessanother person, enter into any Material Contract "keep well" or grant other agreement to maintain any release financial statement condition of another person or relinquishment enter into any arrangement having the economic effect of any material contract rightsof the foregoing or (ii) make any loans, advances of 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; (vf) incur pay, discharge, settle or assume satisfy any long-term debt for borrowed money except for debt incurred claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as or in effect on the date hereof not in excess accordance with their terms, of workers compensation claims under $50,000 in any single instance or claims by or against customers involving amounts under $150,000 in the aggregate200,000; (vig) assume, guarantee, endorse propose or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregate; (vii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, or investments in, any other person (other than wholly owned subsidiaries of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration Certificate of Incorporation, as amended, or Bylaws of the Company (or governing entity any such similar organizational documents of any subsidiaryits subsidiaries), except as contemplated hereby; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xih) enter into any new employment, severance, consulting or salary continuation employment agreements with any of its officers, trust managers directors or key employees or grant any material increases in the compensation or benefits to its officers, trust managers directors and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's key employees, including the employees of FCA Corp., for a similar new agreement or increase; (xiii) settle take any outstanding litigation, other than as of the actions set forth in Section 5.92.5 not otherwise specified herein; (xiiij) adopt, settle the terms of any litigation affecting the Company or any of its subsidiaries; (k) make any amendment tax election or settle or compromise any income tax liability; (l) make or agree to or terminate make any employee benefit plan except as required by law or to maintain tax qualified status or as requested by new capital expenditures (other than capital expenditures in accordance with the Internal Revenue Service Company's existing budget not in order to receive a determination letter excess of $100,000 for such employee benefit planany single expenditure); or (xivm) agree in writing or otherwise to take any of the foregoing actionsactions or any action which would make any representation or warranty in this Agreement untrue or incorrect.
Appears in 1 contract
Samples: Securities Purchase Agreement (Canisco Resources Inc)
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or with the prior written consent of the Purchasers, during the period from the date of this Agreement until to the Effective TimeClosing Date, the Company and its subsidiaries will each conduct its operations according to its ordinary and usual course of business and consistent with past practice and will use all reasonable efforts consistent with prudent business practice to preserve intact the business organization of the Company and each of its subsidiaries, to keep available the services of its and their current officers and key employees and to maintain existing relationships with those having significant business relationships with the Company and its subsidiaries, in each case in all material respects. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or the Disclosure Letter, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, will, without the prior written consent of Equity One (not to be unreasonably withheld), (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of, in lieu of or in substitution for Shares outstanding on the date hereof; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iii) split, combine or reclassify its shares of beneficial interest or capital stock or declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of beneficial interest or capital stock of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective Time; (iv) (1) make any acquisition, by means of a merger or otherwise, of assets or securities, or any sale, lease, encumbrance or other disposition of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment of any material contract rights; (v) incur or assume any long-term debt for borrowed money except for debt incurred only in the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and except for debt that may effort then would be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 applied in the aggregate; (vi) assumeabsence of this Agreement, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for will use its reasonable best efforts to preserve intact the obligations of any other person except wholly owned subsidiaries business organization of the Company, to keep available the services of the present officers and key employees of the Company and to preserve the good will of customers, suppliers and all other Persons having business relationships with the Company. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement, prior to the Closing Date, the Company will not, without the prior written consent of the Purchasers, which consent will not be unreasonably withheld or delayed: (a) engage in any transaction (including, without limitation, capital expenditures) out of the ordinary course of its business and consistent with past practices; (b) issue, reissue or sell, or authorize the issuance, reissuance or sale of shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock; (c) dispose of any of its assets or properties except to the extent these are used, retired or replaced in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregateits business; (viid) except fail to keep in connection force any governmental licenses, permits, authorizations, consents or approvals required by the Company to own its assets and properties or to carry on its business as currently conducted; (e) fail to keep in force its Intellectual Property rights; (f) fail to perform all material obligations required to be performed by it under any of the Contractual Obligations; (g) enter into transactions with transactions permitted by affiliates of the Company; (ivh) above, make any loans, advances or capital contributions pay dividends to, or investments inredeem the shares of, any other person (stockholders of the Company other than wholly owned subsidiaries pursuant to an existing restricted stock purchase agreement with current or former employees; and (i) amend the Certificate of Incorporation or the Bylaws of the Company) in each case in excess of $50,000 in any single instance or $150,000 in the aggregate; (viii) change any of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws of the Company or governing entity documents of any subsidiary; (x) except as may be required under any previously existing agreement or plan, grant any share related awards; (xi) enter into any new employment, severance, consulting or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law or to maintain tax qualified status or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business of the Company. Except as contemplated by this AgreementAgreement or as described in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement until hereof to the Effective Time, the Company will and will cause each of its subsidiaries will each to conduct its operations according to its in the ordinary and usual course of business and consistent with past practice and, to the extent consistent therewith, with no less diligence and will use all reasonable efforts consistent with prudent business practice effort than would be applied in the absence of this Agreement seek, to preserve intact the its current business organization of the Company and each of its subsidiariesorganizations, to keep available the services service of its and their current officers and key employees and to maintain existing preserve its relationships with those customers, suppliers and others having significant business relationships dealings with it to the Company end that goodwill and its subsidiaries, in each case in all material respectsongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as set forth in Section 5.1 of the Disclosure Letter and except as otherwise expressly provided in or contemplated by this Agreement or as described in Section 4.1 of the Company Disclosure LetterSchedule, prior to the Effective Time, neither the Company nor any of its subsidiaries, as the case may be, subsidiaries will, without the prior written consent of Equity One Parent and Acquisition: (not a) amend its Certificate of Incorporation or bylaws (or other similar governing instrument); (b) amend the Company Rights Agreement in any manner that would permit any person to be unreasonably withheld)acquire more than 20% of the Shares, or redeem the Company Rights; (ic) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or pledgedeliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or authorize otherwise) any stock of any class or propose the issuance, sale or pledge of (A) Company Securities or Subsidiary Securities, in each case, other than Shares issuable upon exercise or vesting of the Rights outstanding on the date hereof or the exercise of rights under any plan or any agreement referred to in Section 3.3 of the Disclosure Letter and which are outstanding on the date hereof, or (B) any other securities in respect of(except bank loans) or equity equivalents (including, in lieu without limitation, any stock options or stock appreciation rights) except for the issuance and sale of or in substitution for Shares outstanding on pursuant to options previously granted under the date hereofCompany Plans; (ii) otherwise acquire or redeem, directly or indirectly, any Company Securities or Subsidiary Securities (including the Shares); (iiid) split, combine or reclassify its any shares of beneficial interest or its capital stock or stock, declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock or propertyproperty or any combination thereof) on any shares in respect of beneficial interest or its capital stock except for quarterly cash dividends not in excess of $0.06 per Share paid in accordance with past practice, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries; (e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries (other than cash dividends paid to the Company by its wholly owned subsidiaries with regard to their capital stock) provided, however, that the Company may declare and pay one regular quarterly dividend to shareholders of record as of a date no later than September 15, 2001 in an amount not to exceed $0.13 per share plus any dividends in the minimum amount necessary based on a written opinion of the Company's independent certified public accountants to avoid (x) jeopardizing the Company's REIT status under the Code and (y) having positive real estate investment trust taxable income for the taxable year ending on the Effective Date; provided further that, the Company may declare a dividend (other than a regular quarterly dividend) and fix the record date of that dividend on a date prior to the Effective Time to allow Equity One to cause a subsequent year dividend to be paid to the Company shareholders of record pursuant to Section 858 of the Code in the minimum amount necessary to avoid (x) jeopardizing the Company's REIT status under the Code, and (y) having positive real estate investment trust taxable income for the taxable year ending at the Effective TimeMerger); (ivf) (1) make any acquisitionalter through merger, by means of a merger or otherwiseliquidation, of assets or securitiesreorganization, restructuring or any sale, lease, encumbrance or other disposition fashion the corporate structure of assets or securities, in each case involving the payment or receipt of consideration of in excess of $50,000 in any single instance or $250,000 in the aggregate other than leases of Company Properties to tenants in the ordinary and usual course of business consistent with past practice in all material respects, or (2) other than in the ordinary course of business, enter into any Material Contract or grant any release or relinquishment ownership of any material contract rightssubsidiary; (vg)(i) incur or assume any long-term or short-term debt for borrowed money or issue any debt securities except for debt incurred borrowings under existing lines of credit in the ordinary course of business consistent with past practice and except for debt that may be incurred pursuant to existing contractual arrangements as in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregatebusiness; (viii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly owned subsidiaries of the Company, except in the ordinary course of business consistent with past practice and except in connection with liabilities or responsibilities that may be for obligations of subsidiaries of the Company incurred pursuant to existing contractual arrangements in effect on the date hereof not in excess of $50,000 in any single instance or $150,000 in the aggregateordinary course of business; (viiiii) except in connection with transactions permitted by (iv) above, make any loans, advances or capital contributions to, to or investments in, in any other person (other than wholly owned to subsidiaries of the Company) Company or customary loans or advances to employees in each case in excess the ordinary course of $50,000 in any single instance business consistent with past practice) (iv) pledge or $150,000 in the aggregate; (viii) change any otherwise encumber shares of the accounting or tax principles, practices or elections used by it or any of its subsidiaries, except as required by the SEC or required by United States generally accepted accounting principles; (ix) adopt any amendments to the Declaration or Bylaws capital stock of the Company or governing entity documents its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any subsidiarymaterial Lien thereupon (other than Tax Liens for Taxes not yet due); (xh) except as may be required under any previously existing agreement or planby law, grant any share related awards; (xi) enter into adopt or amend or terminate any new employmentbonus, profit sharing, compensation, severance, consulting termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or salary continuation agreements with any of its officers, trust managers or employees or grant any increases in the compensation or benefits to its officers, trust managers and employees or otherwise reimburse or agree to reimburse any property manager or such property manager's employees, including the employees of FCA Corp., for a similar new agreement or increase; (xii) settle any outstanding litigation, other than as set forth in Section 5.9; (xiii) adopt, make any amendment to or terminate any employee benefit plan except as required by law agreement, trust, plan, fund or to maintain tax qualified status other arrangement for the benefit or as requested by the Internal Revenue Service in order to receive a determination letter for such employee benefit plan; or (xiv) agree in writing or otherwise to take welfare of any of the foregoing actions.A-23
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