Forbearances. Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, without the prior written consent of Dex or SuperMedia, as applicable, which shall not be unreasonably withheld, delayed or conditioned: (a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof); (b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms); (c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries; (d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations; (e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice; (f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees; (g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles; (h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries; (i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition; (j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes; (k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms); (l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof; (m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof; (n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable); (o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof); (p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; (q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary; (r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries; (s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices; (t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable; (u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex; (v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or (w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 2 contracts
Sources: Merger Agreement (Supermedia Inc.), Merger Agreement (DEX ONE Corp)
Forbearances. Without limiting the generality of Section 5.1 above, during the period from From the date hereof until the Closing, Seller ------------ covenants and agrees to ensure that neither Superior nor any of its Subsidiaries does and Superior covenants and agrees that neither it nor any of its Subsidiaries will do (other then as contemplated in this Agreement to the Dex Effective Time, except as set forth in Section 5.2 Agreement) any of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, following without the prior written consent of Dex or SuperMedia, as applicablePurchaser, which consent shall not be unreasonably withheld, delayed or conditioned:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside aside, make or pay any dividends on, make any dividend or other distributions distribution in respect ofof its capital stock or otherwise purchase or redeem, directly or indirectly, any shares of its capital stock;
(b) issue, sell or deliver or enter into any agreement with respect to the voting ofissue, any of its capital stock, (ii) split, combine sell or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire deliver any shares of its capital stock or other securities or any of its Subsidiariesoptions, warrants, or any other rights, warrants agreements, commitments, arrangements or options understandings of any kind, contingent or otherwise, to acquire purchase, sell or deliver any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stockshares, or any securities convertible into, into or any rights, warrants or options to acquire, exchangeable for any such shares, voting securities or convertible securities, including effect any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Personsplit, or otherwise acquire or agree to acquire any assetschange its authorized capitalization, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with its past practice; provided;
(c) incur any indebtedness or issue or sell any debt securities or prepay any debt, that except in the foregoing shall not prohibit internal reorganizations ordinary course of business consistent with its past practice;
(d) mortgage, pledge or consolidationsotherwise subject to any material lien or lease, any of its properties or assets, tangible or intangible or permit or suffer any such property or asset to be subjected to any material lien or lease, except in the ordinary course of business consistent with its past practice and for Permitted Exceptions;
(e) sell, assign, transfer, lease, license, mortgage forgive or otherwise encumber cancel any debts or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f))claims, or otherwise dispose waive any rights, except for fair value or in the ordinary course of business consistent with its past practice;
(f) except for loans and deposits in the ordinary course of business, enter into (i) any agreement, commitment or other transaction involving an expenditure, a liability or an obligation of Superior of more than $200,000 or, (ii) any other agreement or commitment that, pursuant to its terms, is not terminable by Superior without penalty at will or on less than 31 days' notice;
(g) except in the ordinary course of its properties business, pay any bonus to any Employee or assets grant to any Employee any increase in compensation;
(including capital stock h) except as contemplated by this transaction or disclosed in any of its Subsidiaries) Schedule to this Agreement, enter into any severance agreement or create salary continuation agreement with any security interest in such assets or properties other than Employee or, except in the ordinary course of business consistent with past practice, or (ii) enter into any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practiceemployment agreement;
(fi) amend its Charter or Bylaws or any other organizational documents;
(j) make any material changes in policies or practices relating to selling practices or other terms of sale or accounting therefor or in policies of employment;
(k) enter into any type of business not conducted by Superior as of the date of this Agreement or create or organize any subsidiary of Superior or enter into or participate in any joint venture or partnership;
(l) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder as otherwise expressly contemplated by this Agreement and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred except in the ordinary course of business consistent with past practice, enter into any agreement or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party transactions with Seller or any other wholly owned Subsidiary affiliate of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), Seller or make any loans amendment or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect modification to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is agreement; or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, action or knowingly fail omit to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in the occurrence of, or agree or commit to do, any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) aboveforegoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Forbearances. Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Company Disclosure Schedule Letter or the Dex Parent Disclosure ScheduleLetter, as applicable, as required by applicable Law, or and except as expressly contemplated or permitted by this AgreementAgreement or as required by applicable Law, neither SuperMedia the Company nor Dex Parent shall, and neither SuperMedia the Company nor Dex Parent shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex Parent or SuperMediathe Company, as applicable, which shall applicable (such consent not to be unreasonably withheld, delayed or conditioned:):
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly wholly-owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, ; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its securitiescapital stock, except upon the exercise of stock options or settlement of stock units that are outstanding as of the date of this Agreement in accordance with their present terms; or (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rightsunits, in each case that are outstanding as of the date hereof of this Agreement in accordance with their present terms and such Party’s practices as of the date hereofof this Agreement);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than (i) the issuance of its common stock upon the exercise of stock options, options or vesting of restricted shares or settlement of stock unitsshares, in each case that are outstanding as of the date hereof of this Agreement in accordance with their present terms; (ii) the issuance of up to 50,000 Company Stock Options to new employees in the ordinary course of business consistent with past practice; or (iii) the issuance of Company Common Stock under the Company Stock Plan pursuant to the Company’s Director Compensation Plan existing on the date of this Agreement up to a fair market value of $225,000 in the aggregate);
(c) amend its certificate articles of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, in each case, except for (i) acquisitions of Oil and Gas Properties, equipment, inventory or other similar assets related to the ownership or operation of Oil & Gas Properties in the ordinary course of business consistent with past practicepractice and (ii) acquisitions for amounts that, in the aggregate, do not exceed $5,000,000; provided, however, that no acquisition otherwise permitted by the foregoing shall not prohibit internal reorganizations clauses (i) or consolidations(ii) may be made to the extent it may reasonably be expected to prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)Permitted Liens), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties that have a fair market value in excess of $5,000,000 in the aggregate, in each case, other than in the ordinary course of business consistent with past practicepractice (including disposing of, selling, assigning, transferring, leasing, licensing, mortgaging or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made otherwise encumbering Oil and Gas Properties and related assets in the ordinary course of business consistent with past practice);
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) Credit Agreements that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly wholly-owned Subsidiary to such Party or any other wholly wholly-owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, repurchase, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations Indebtedness of any Person (other than any of its wholly wholly-owned Subsidiaries), or ;
(g) make any loans or advances to any Person other than to its wholly wholly-owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(gh) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereofof this Agreement, except as required by changes in GAAP or regulatory accounting principles;
(hi) enter into any new line of business or change make investments in any material respect the operating, asset liability, investment or risk management or Persons (other similar policies of it or than in any of its Subsidiaries;
(iwholly-owned Subsidiaries or any Related Entity) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan investment or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment from a Tax Authority or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in Section 5.2 of the SuperMedia Company Disclosure Schedule Letter or the Dex Parent Disclosure Schedule, amendLetter, terminate or waive any material provision of any SuperMedia Company Material Contract or Parent Material Contract, SuperMedia IP Contractas applicable, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms, or enter into or renew any agreement or contract or other binding obligation of such Party or its Subsidiaries containing (i) any restriction on the ability of such Party and its Subsidiaries, or, after the Merger, Parent and its Subsidiaries (including the Company), to conduct their businesses as presently conducted or currently contemplated to be conducted after the Merger or (ii) any restriction on such Party or its Subsidiaries, or, after the Merger, Parent and its Subsidiaries (including the Company), in engaging in any type of activity or business;
(l) make (i) incur any capital expenditures or incur, or (ii) enter into any Contract obligating such Party to incurmake capital expenditures, any except, in each case, for (A) capital expenditures made in accordance with such Party’s existing capital plan for 2013 as in effect as of the date of this Agreement (which plan is set forth in Section 5.2 of the Company Disclosure Letter or operating the Parent Disclosure Letter, as applicable); or (B) to the extent not reflected on such capital plan, capital expenditures not in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available aggregate with respect to the Other Party prior Company and $10,000,000 in the aggregate with respect to the date hereofParent;
(m) except as required by agreements or instruments in effect on the date hereofof this Agreement, alter in any material respect, fail to satisfy or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereofof this Agreement;
(n) except as required by the terms of SuperMedia Company Benefit Plans or SuperMedia Company Employment Agreements, or the terms of Dex Parent Benefit Plans or Dex Parent Employment Agreements, as applicable, as in effect on the date hereof of this Agreement or as required by applicable Law or as provided by this Agreement, or as in the ordinary course of business consistent with past practice, (i) grant or pay to any current or former director, officer, employee or consultant of Dex the Company or any Dex Subsidiary of its Subsidiaries or SuperMedia Parent or any SuperMedia Subsidiary of its Subsidiaries, as applicable, any increase in compensation, except for annual or promotional salary or wage increases in the ordinary course of business consistent with past practicepractice not to exceed, in the aggregate for all such increases, 10% of the aggregate wage and salary expense for the prior year to the Company and its Subsidiaries or Parent and its Subsidiaries, as applicable, on a consolidated basis, except Parent may grant or pay to both (A) the estate of its immediate past Chairman who served prior to April 19, 2013 the incentive bonuses for the fiscal year that ends June 30, 2013 and (B) its current Chairman, President and Chief Executive Officer the incentive bonuses for the fiscal year that ends June 30, 2013 and the fiscal year that will begin July 1, 2013, in accordance with the criteria previously approved by the Parent Board, which bonuses shall not exceed the individual amounts set forth in Section 5.2(n) of the Parent Disclosure Schedule; (ii) grant, pay, promise to pay, or enter into any SuperMedia Company Benefit Plan or SuperMedia Company Employment Agreement or Dex Parent Benefit Plan or Dex Parent Employment Agreement (Agreement, as applicable) , to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia the Company or any SuperMedia Subsidiary of its Subsidiaries or Dex Parent or Dex Subsidiary (any of its Subsidiaries, as applicable) , any severance severance, retention, change in control or termination pay or any increase in severance actual or potential severance, retention, change in control or termination pay, except to Parent Employees who will be employed by Parent for six months or less following the Effective Time in an amount not to exceed $1,500,000 in the aggregate; (iii) increase the compensation or benefits provided or payable under any SuperMedia Company Benefit Plan, SuperMedia Plan or Company Employment Agreement or Parent Benefit Plan or Parent Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, as applicable; (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Company Stock Plan or Dex Parent Stock Plan, as applicable; (v) make any discretionary contributions or payments with respect to any SuperMedia Company Benefit Plan, SuperMedia Plan or Company Employment Agreement or Parent Benefit Plan or Parent Employment Agreement, Dex Benefit Planas applicable, or Dex Employment Agreement to any trust or other funding vehicle, ; (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia the Company or any SuperMedia Subsidiary of its Subsidiaries or Dex Parent or any Dex Subsidiary of its Subsidiaries, as applicable, or otherwise pay any amounts not due such individual, except to Parent Employees who will be employed by Parent for six months or less following the Effective Time; (vii) enter into any new or amend or modify any existing SuperMedia Company Employment Agreement or Dex Parent Employment Agreement Agreement, as applicable, (or agreement that would be a SuperMedia Company Employment Agreement or Dex Parent Employment Agreement Agreement, as applicable, if in effect on the date hereofof this Agreement), other than employment agreements for new hires with total an annual compensation not to exceed exceeding $300,000, 250,000 in the aggregate; (viii) establish any new or amend or modify any existing SuperMedia Company Benefit Plans or Dex Parent Benefit Plan Plans, as applicable, (or plans that would be a SuperMedia Company Benefit Plan or Dex Parent Benefit Plan Plan, as applicable, if in effect on the date hereof) of this Agreement); or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable)agreement;
(o) except as set forth in Section 5.2 of the SuperMedia Company Disclosure Schedule Letter or the Dex Parent Disclosure ScheduleLetter, pay, discharge, settle settle, waive, release or assign or compromise any Actionlegal action, litigation, arbitration, suit, investigation or proceeding, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 5,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actionslegal action, litigation, arbitration or proceeding, or (ii) pursuant to the terms of any Contract in effect on the date hereof of this Agreement (copies of which have been provided to the Other Party prior to the date hereofof this Agreement);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would reasonably be reasonably expected to prevent the Mergers Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such Party or any of its SubsidiariesSubsidiaries (other than the Merger);
(sr) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(s) enter into any hedging Contracts not in the ordinary course of business consistent with past practice;
(t) open purchase or otherwise acquire, directly or indirectly (including by way of providing financing), any material new offices Equity Interests in the Other Party or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement Other Party’s Subsidiaries; or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections Section 5.2(a) to through (vt) above.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement until the earlier of the termination of this Agreement pursuant to Article 6 or the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this AgreementAgreement or as otherwise indicated in this Section 4.2 or required by law, neither SuperMedia Sabal Palm nor Dex the Bank shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, without the prior written consent of Dex the chief executive officer, chief credit officer or SuperMedia, as applicable, chief lending officer of SBC (which consent shall not be unreasonably withheldwithheld or delayed) provided, delayed however, that with respect to Section 4.2(i), Section 4.2(s), and Section 4.2(w), if Seacoast shall not have disapproved of Sabal Palm’s or conditionedthe Bank’s written request in writing within five (5) Business Days of receipt of such written request from Sabal Palm or the Bank, then such request shall be deemed to be approved by Seacoast:
(a) amend its Organizational Documents or any resolution or agreement concerning indemnification of its directors or officers;
(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter (i) other than dividends and distributions by a direct adjust, split, combine, subdivide or indirect Subsidiary to such Party or to reclassify any direct or indirect wholly owned Subsidiary of such Partycapital stock, (ii) make, declare, set aside or pay any dividends on, dividend or make any other distributions in respect ofdistribution on, or enter into any agreement with respect to the voting ofdirectly or indirectly redeem, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem purchase or otherwise acquire acquire, any shares of its capital stock or other any securities or any obligations convertible (whether currently convertible or convertible only after the passage of its Subsidiaries, time or any rights, warrants the occurrence of certain events) into or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien exchangeable for any shares of its capital stock, (iii) grant any other voting securitiesRights, including any restricted shares of its common stock(iv) issue, or any securities convertible intosell, or any rightspledge, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities dispose of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assigngrant, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f))guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Sabal Palm Equity Awards outstanding as of the date of this Agreement, or (iv) make any change in any instrument or Contract governing the terms of any of its properties or assets securities;
(including capital stock in any of its Subsidiariesc) or create any security interest in such assets or properties other than in the ordinary course of business or consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policypermitted by this Agreement, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether (either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investment, loan property or acquisitionassets) in any other Person;
(ji) makecharge off (except as may otherwise be required by law or by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with past practices) any of its portfolio of loans, change discounts or revoke financing leases, or (ii) sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to be terminated any of the policies of insurance it maintains on its business or property, cancel any material Tax electionindebtedness owing to it or any claims that it may have possessed, change an annual Tax accounting period, adopt or change waive any right of substantial value or discharge or satisfy any material Tax accounting method, file any material amended Tax Return, noncurrent liability;
(f) enter into any closing agreement with respect to a material amount new line of Taxesbusiness, settle or change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any material Tax claim or assessment or surrender policies imposed on it by any right to claim a refund of a material amount of TaxesGovernmental Authority;
(kg) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule ordinary course of business consistent with past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the Dex Disclosure Schedule, amend, terminate aggregate or waive (iv) incur any material provision liability, commitment, indebtedness or obligation (of any SuperMedia Material Contractkind whatsoever, SuperMedia IP Contract, Dex Material Contract whether absolute or Dex IP Contract, as applicable (the “Material Contracts”contingent), or enter into cancel, release or renew assign any agreement indebtedness of any Person or contract or other binding obligation that is orany claims against any Person, if it were on place except pursuant to Contracts in force as of the date hereofof this Agreement and disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, would be agree to transfer or grant, or agree to grant a Material Contract (other than normal renewals license to, any of such Contracts without materially adverse changes, additions or deletions of terms)its material Intellectual Property;
(lh) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (ii) grantother than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), pay“short-term” shall mean maturities of six months or less)); assume, promise to payguarantee, endorse or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (otherwise as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase an accommodation become responsible for the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms obligations of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable)Person;
(oi) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) purchases of investment securities in the ordinary course of business consistent with past practice that involves solely money damages or in an amount not in excess of $1,000,000 individually consultation with SBC, restructure or $2,000,000 in the aggregatechange its investment securities portfolio or its gap position, and that does not create binding precedent for other pending through purchases, sales or potential Actionsotherwise, or the manner in which the portfolio is classified or reported;
(iij) pursuant to the terms terminate or waive any material provision of any Contract in effect on the date hereof (copies other than normal renewals of which have been provided to the Other Party prior to the date hereof)Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(pk) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except other than in the reasonable ordinary course of business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices practice or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations as required by Benefit Plans and layoffs Contracts as in progress on effect at the date of this Agreement or planned on the date hereof and disclosed as set forth in Section 5.2(t4.2(k) of the SuperMedia Company Disclosure Schedule Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the Dex Disclosure Schedulelapsing of restrictions with respect to, as applicableRights pursuant to any Sabal Palm Stock Plan, except pursuant to Section 1.7, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(ul) settle any Litigation, except in the ordinary course of business;
(m) revalue any of its or its Subsidiaries’ assets or change any method of accounting or accounting practice used by it or its Subsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Liability for Taxes; or make, change or revoke any tax election or change any method of tax accounting, except as required by applicable Law, convene ; enter into any regular or special meeting “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any adjournment thereof) similar provision of applicable Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the stockholders of SuperMedia limitations period applicable to any claim or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement assessment with respect to the voting of capital stock of SuperMedia or DexTaxes;
(vo) take knowingly take, or knowingly omit to take, any action that is intended or is reasonably likely to result in any of the conditions to the Mergers Merger set forth in Article VII 5 not being satisfied satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Sabal Palm from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in a violation the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any provision Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory lending limits;
(v) take any action or fail to take any action that will cause Sabal Palm’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $30.3 million at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $250,000 and which is unsecured, or $1.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) knowingly take any action that would prevent or impede the Merger and the Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; or
(wz) agree or commit or agree to take any of the actions contemplated prohibited by Sections 5.2(a) to (v) abovethis Section 4.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement until the earlier of the termination of this Agreement pursuant to Article 6 or the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this AgreementAgreement or as otherwise indicated in this Section 4.2 or required by law, neither SuperMedia Business Bank nor Dex the Bank shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, without the prior written consent of Dex the chief executive officer or SuperMediachief financial officer of SBC (or, as applicablewith respect to Section 4.2(u) or 4.2(w), the chief credit officer or chief lending officer of SBC) (which consent shall not be unreasonably withheld, delayed withheld or conditioned:delayed):
(a) amend its Organizational Documents or any resolution or agreement concerning indemnification of its directors or officers;
(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter (i) other than dividends and distributions by a direct adjust, split, combine, subdivide or indirect Subsidiary to such Party or to reclassify any direct or indirect wholly owned Subsidiary of such Partycapital stock, (ii) make, declare, set aside or pay any dividends on, dividend or make any other distributions in respect ofdistribution on, or enter into any agreement with respect to the voting ofdirectly or indirectly redeem, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem purchase or otherwise acquire acquire, any shares of its capital stock or other any securities or any obligations convertible (whether currently convertible or convertible only after the passage of its Subsidiaries, time or any rights, warrants the occurrence of certain events) into or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien exchangeable for any shares of its capital stock, (iii) grant any other voting securitiesRights, including any restricted shares of its common stock(iv) issue, or any securities convertible intosell, or any rightspledge, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities dispose of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assigngrant, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f))guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Business Bank Equity Awards outstanding as of the date of this Agreement, or (iv) make any change in any instrument or Contract governing the terms of any of its properties or assets securities;
(including capital stock in any of its Subsidiariesc) or create any security interest in such assets or properties other than in the ordinary course of business or consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policypermitted by this Agreement, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether (either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investment, loan property or acquisitionassets) in any other Person;
(ji) makecharge off (except as may otherwise be required by law or by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with past practice) any of its portfolio of loans, change discounts or revoke financing leases, or (ii) sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to be terminated any of the policies of insurance it maintains on its business or property, cancel any material Tax electionindebtedness owing to it or any claims that it may have possessed, change an annual Tax accounting period, adopt or change waive any right of substantial value or discharge or satisfy any material Tax accounting method, file any material amended Tax Return, noncurrent liability;
(f) enter into any closing agreement with respect to a material amount new line of Taxesbusiness, settle or change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any material Tax claim or assessment or surrender policies imposed on it by any right to claim a refund of a material amount of TaxesGovernmental Authority;
(kg) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule ordinary course of business consistent with past practice: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the Dex Disclosure Schedule, amend, terminate aggregate or waive (iv) incur any material provision liability, commitment, indebtedness or obligation (of any SuperMedia Material Contractkind whatsoever, SuperMedia IP Contract, Dex Material Contract whether absolute or Dex IP Contract, as applicable (the “Material Contracts”contingent), or enter into cancel, release or renew assign any agreement indebtedness of any Person or contract or other binding obligation that is orany claims against any Person, if it were on place except pursuant to Contracts in force as of the date hereofof this Agreement and disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, would be agree to transfer or grant, or agree to grant a Material Contract (other than normal renewals license to, any of such Contracts without materially adverse changes, additions or deletions of terms)its material Intellectual Property;
(lh) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (ii) grantother than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), pay“short-term” shall mean maturities of six months or less)); assume, promise to payguarantee, endorse or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (otherwise as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase an accommodation become responsible for the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms obligations of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable)Person;
(oi) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) purchases of investment securities in the ordinary course of business consistent with past practice that involves solely money damages or in an amount not in excess of $1,000,000 individually consultation with SBC, restructure or $2,000,000 in the aggregatechange its investment securities portfolio or its gap position, and that does not create binding precedent for other pending through purchases, sales or potential Actionsotherwise, or the manner in which the portfolio is classified or reported;
(iij) pursuant to the terms terminate or waive any material provision of any Contract in effect on the date hereof (copies other than normal renewals of which have been provided to the Other Party prior to the date hereof)Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(pk) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except other than in the reasonable ordinary course of business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices practice or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations as required by Benefit Plans and layoffs Contracts as in progress on effect at the date of this Agreement or planned on the date hereof and disclosed as set forth in Section 5.2(t4.2(k) of the SuperMedia Company Disclosure Schedule Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the Dex Disclosure Schedulebenefit of any officer, as applicableemployee or director, (iv) make any changes to a Benefit Plan that are not required by Law or (v) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(ul) settle any Litigation, except in the ordinary course of business;
(m) revalue any of its or its Subsidiaries’ assets or change any method of accounting or accounting practice used by it or its Subsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as required by applicable Law, convene ; enter into any regular or special meeting “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any adjournment thereof) similar provision of state, local or foreign Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the stockholders of SuperMedia limitations period applicable to any claim or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement assessment with respect to the voting of capital stock of SuperMedia or DexTaxes;
(vo) take knowingly take, or knowingly omit to take, any action that is intended or is reasonably likely to result in any of the conditions to the Mergers Merger set forth in Article VII 5 not being satisfied satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Business Bank from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practice from any other Person with a value or purchase price in a violation the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any provision Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) except in the ordinary course of business consistent with past practice, make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory lending limits;
(v) take any action or fail to take any action that will cause Business Bank’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than the Business Bank Target Consolidated Tangible Shareholders’ Equity at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to or made available to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $250,000 and which is unsecured, or $1.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) knowingly take any action that would prevent or impede the Merger and the Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; or
(wz) agree or commit or agree to take any of the actions contemplated prohibited by Sections 5.2(a) to (v) abovethis Section 4.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. Without limiting Except as contemplated by this Agreement or as set forth on Schedule 5.2, the generality of Section 5.1 aboveCompany will not, during the period and will cause its Subsidiaries not to, from the date hereof until the earlier of this Agreement to (i) the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule Time or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to(ii) termination under Article VIII, without the prior written consent of Dex or SuperMedia, as applicable, which shall not be unreasonably withheld, delayed or conditionedInvestor:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Partysell, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem lease or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents dispose of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicableIntellectual Property, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(fii) incur any indebtedness for borrowed money except under credit facilities existing as of the date hereof in the ordinary course of business consistent with past practice;
(iii) mortgage, pledge or otherwise encumber, or permit to exist any new security interest, lien or encumbrance on, any of its assets except in the ordinary course of business consistent with past practice;
(iv) enter into, amend, modify or cancel any Material Contract or Lease except in the ordinary course of business consistent with past practice;
(v) make any material investment in, purchase any material securities of, or merge with, any Person or, except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder purchases of inventory and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred other assets in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by purchase any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or material assets;
(vi) assume, guarantee or endorseguarantee, endorse or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiariesthe Company or a Subsidiary), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result except in the ordinary course of ordinary advances and reimbursements to employeesbusiness consistent with past practice;
(gvii) change increase in any material respect its accounting methods manner the compensation of any of (a) the employees of the Company or underlying assumptions)the Subsidiaries or the directors or officers of the Subsidiaries other than ASCI, principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, other than increases in compensation in the ordinary course of business consistent with past practice or policy, in each case, in effect on (b) the date hereof, except as required by changes in GAAP directors and officers of the Company or regulatory accounting principlesASCI;
(hviii) pay or agree to pay any pension or retirement allowance not required by an existing plan or agreement to any director, officer or employee, whether past or present, of the Company or its Subsidiaries, or enter into or amend (except to terminate) any new line of business employment agreement or change in any material respect the operatingincentive compensation, asset liabilityprofit sharing, investment or risk management stock purchase, stock option, stock appreciation rights, savings, consulting, deferred compensation, severance, retirement, pension or other similar policies benefit plan or arrangement with or for the benefit of it or any of its Subsidiariesdirectors, officers, employees or of any other person except as may be required by applicable law or regulation;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(kix) except as expressly permitted by any other provision of this Section 5.2 or (A) as set forth in the SuperMedia Disclosure Schedule capital expenditure budget provided to Investor and (B) for purchase orders for inventory arising in the ordinary course of business, enter into any contract which will require an expenditure after the Effective Time of more than $2,000,000 by the Company or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms)Subsidiaries;
(lx) declare, set aside or pay any dividend in cash or property, repurchase or otherwise make any distribution, with respect to its capital stock other than dividends payable on the Preferred Shares;
(xi) split, combine or incurotherwise similarly change its capital stock, or redeem any of its capital stock;
(xii) authorize the creation or issuance of, or issue or sell, any shares of its or its Subsidiaries' capital stock or any securities or obligations convertible into or exchangeable for, or giving any person any right to acquire from it, any shares of its or its Subsidiaries' capital stock;
(xiii) enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereofother similar arrangement;
(nxiv) enter into any agreement which restricts in any way its ability to compete with any other Person;
(xv) amend its Articles of Incorporation or By-laws, except as required contemplated by Section 2.4 and to increase the terms number of SuperMedia Benefit Plans authorized Common Shares to effect the stock split referred to in Section 5.18;
(xvi) cancel or SuperMedia Employment Agreementscompromise, or the terms except compromises of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee short- term trade receivables or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases other current assets in the ordinary course of business consistent with past practice, (ii) grant, pay, promise any indebtedness owed to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable)it;
(oxvii) settle any material litigation or, except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages practice, waive or relinquish any material right or benefit, or write-off any material asset except as required by generally accepted accounting principles;
(xviii) cancel or allow any of its existing insurance policies to lapse;
(xix) alter in an amount not any way the manner in excess which it has regularly and customarily maintained its books of $1,000,000 individually account and records, or $2,000,000 change any of its accounting principles or the methods by which such principles are applied for tax or reporting purposes, except as required by law or by generally accepted accounting principles;
(xx) change or commit to change the business of the Company and its Subsidiaries from the Business or add new businesses, or change or commit to change materially the manner in which the Business is currently conducted;
(xxi) except for items in the aggregatecategories set forth in Schedule 5.2, make any payment or distribution to, or loan or advance funds or extend credit to, sell any asset to or purchase any asset from, or assign or convey any right to, an Affiliated Person, other than payments made under leases at stores or other facilities owned by Affiliated Persons in the ordinary course of business consistent with past practice, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract such leases as currently in effect on the date hereof effect; or (copies xxii) agree of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity commit to do any of the foregoingthings described in clauses (i) through (xxi) above. Except as contemplated by this Agreement, except for openingsno Shareholder shall sell, closingstransfer, relocations and layoffs in progress on the date of this Agreement convey, assign, mortgage, pledge, or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule hypothecate any Common Share or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder MeetingPreferred Share, or enter into any Contract, understanding agreement or arrangement with respect commitment to do the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) abovesame.
Appears in 1 contract
Sources: Merger Agreement (Laralev Inc)
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shallCSB shall not, and neither SuperMedia nor Dex shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, in each case without the prior written consent of Dex or SuperMedia, as applicable, which First Charter (and CSB shall not be unreasonably withheld, delayed or conditioned:provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereof):
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, incur any indebtedness or other obligation for borrowed money (ii) other than short-term indebtedness incurred to refinance short-term indebtedness, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any SuperMedia IP owned by SuperMedia other individual, corporation or the SuperMedia Subsidiaries other entity, or make any Dex IP owned by Dex loan or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made advance other than in the ordinary course of business consistent with past practice;
(fb) adjust, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; make, declare or pay any dividend or make any other distribution with respect to, or directly or indirectly redeem, purchase, exchange or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock or any right to acquire cash based on the market value of CSB Common Stock; or issue any additional shares of capital stock, or any securities or obligations convertible into or exchangeable for any shares of its capital stock, except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting issuance of CSB Common Stock pursuant to the ability exercise of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and CSB Options outstanding as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not or pursuant to exceed $5,000,000the Stock Option Agreement;
(c) sell, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Partytransfer, or as contemplated by Section 6.14mortgage, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, encumber or otherwise become responsible for the obligations dispose of any Person (other than any of its wholly owned properties or assets to any individual, corporation or other entity (including without limitation any shares of capital stock of any of its Subsidiaries), or make cancel, release or assign any loans or advances indebtedness to any Person other than to its wholly owned Subsidiaries such person or as a result of ordinary advances and reimbursements to employeesany claims held by any such person;
(gd) change in except for purchases of U.S. Treasury securities which have maturities of three years or less, make any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investmentproperty or assets of, loan or acquisition;
(j) make, change otherwise acquire direct or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by indirect control over any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms)Person;
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex Colorado Cooperative Merger Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or Colorado Corporation Merger Effective Time and the Dex Disclosure ScheduleNorth Dakota Corporation Merger Effective Time, as applicablethe case may be, as required by applicable Law, or except as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, without the prior written consent of Dex or SuperMediathe other parties to this Agreement, as applicable, which shall not be unreasonably withheld, delayed or conditionedno party shall:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or grant to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay person any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants option or other rights of any kind right to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any equity interests, except for allocation of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, patronage equities in each case that are outstanding as of the date hereof in accordance a manner consistent with their present terms and such Party’s practices as of the date hereof)past practice;
(b) issue, deliver, sell, pledge or otherwise encumber or subject to issue any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted additional shares or settlement units of capital stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or and other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assetsinterests, except for acquisitions of inventory or other similar assets in the ordinary course of business and consistent with past practice; provided;
(c) enter into, that the foregoing shall not prohibit internal reorganizations amend or consolidationsterminate any material contract, lease or understanding;
(d) amend its Articles of Incorporation, its By-Laws or any board policies;
(e) sellincur any indebtedness for borrowed money or make any commitment to borrow money, assign, transfer, lease, license, mortgage or otherwise encumber or subject except indebtedness incurred in the ordinary course of business pursuant to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose credit arrangements existing as of (i) any the date of its properties or assets this Agreement (including any renewals thereof);
(f) make any material capital stock in any of its Subsidiaries) or create any security interest in such assets or properties expenditures other than in the ordinary course of business consistent with past practiceor which were disclosed to the other party;
(g) mortgage any of its assets or properties, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practicebusiness, sell any of its material assets or properties;
(fh) pay any dividends or make any distributions with respect to its capital stock or equity interests, except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in reclassify, combine, subdivide, split, or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of amend its capital stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisitionequity interests;
(j) makepurchase, change acquire or revoke redeem any material Tax election, change an annual Tax accounting period, adopt shares of its capital stock or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregateequity interests, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);business; or
(ok) except as set forth in the SuperMedia Disclosure Schedule agree or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity commit to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Sources: Transaction Agreement (Dakota Growers Restructuring Co Inc)
Forbearances. Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or Except as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary Agreement or Dex Subsidiary, as applicable, torequired by Legal Requirement, without the prior written consent of Dex Business First, MBI will not (and will cause each of its Subsidiaries not to):
A. enter into any new material line of business or SuperMediachange its lending, as applicableinvestment, underwriting, risk and asset liability management and other material banking and operating policies in any material respect;
B. open, close or relocate any branch office, or acquire or sell or agree to acquire or sell any branch office or deposit liabilities;
C. except with respect to the exercise of outstanding options, issue, sell or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the creation of, any additional shares of its common stock or permit new shares of its stock to become subject to new grants;
D. issue, grant or accelerate the vesting of any option, restricted stock award, warrant, call, commitment, subscription, right to repurchase or agreement of any character related to the authorized or issued capital stock of MBI or MBL Bank, or any securities convertible its shares of such stock;
E. except for regular quarterly dividends consistent with past practice in amount, which MBI shall not be unreasonably withheldmake with respect to each fiscal quarter completed prior to the Closing Date, delayed or conditioned:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary with respect to such Party or to any direct or indirect wholly owned Subsidiary of such Partythe Pre-Closing Dividend, make, declare, pay or set aside for payment any dividend on or pay any dividends on, make any other distributions in respect of, or enter into declare or make any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire distribution on any shares of its capital stock (other than dividends from its wholly owned Subsidiaries to it or another of its wholly owned Subsidiaries) or directly or indirectly adjust, split, combine, redeem, reclassify, purchase of otherwise acquire, any shares of its stock (other securities than repurchases of common shares in the ordinary course of business to satisfy obligations under Employee Benefit Plans);
F. sell, transfer, mortgage, encumber or otherwise dispose of or discontinue any of its Subsidiariesassets, deposits, business or any rightsproperties, warrants or options to acquire any such shares except for sales, transfers, mortgages, encumbrances or other securities dispositions or discontinuances in the ordinary course of business consistent with past practice and in a transaction that, together with other such transactions, is not material to MBI or MBL Bank, taken as a whole;
G. acquire (other than the withholding by way of shares foreclosures or acquisitions of common stock to satisfy the exercise price control in a fiduciary or Tax withholding upon the exercise similar capacity or in satisfaction of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rightsdebts previously contracted in good faith, in each case that are outstanding as in the ordinary and usual course of business consistent with past practice) all or any portion of the date hereof assets, business, deposits or properties of any other Entity or enter into any other transaction, except in accordance the ordinary course of business consistent with their past practice and in a transaction that, together with other such transactions, is not material to it and its Subsidiaries, taken as a whole, and does not present terms and such Party’s practices as a material risk that the Closing Date will be materially delayed or that the Requisite Regulatory Approvals will be more difficult to obtain;
H. enter into, amend, renew or terminate any agreement of the date hereof);
(b) issue, deliver, sell, pledge type that is or otherwise encumber or subject would be required to any Lien any shares be disclosed in Section 3.13A of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (the Schedules other than as contemplated by this Agreement, unless the issuance of its common stock upon agreement is to be performed in full prior to the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assetsClosing, except for acquisitions of inventory that employee welfare benefit plans which provide insurance benefits may be amended or other similar assets renewed in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations .
I. amend its Constituent Documents or consolidationsthose of its Subsidiaries;
(e) sellJ. implement or adopt any change in its accounting principles or policies, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with as may be required by GAAP or regulatory accounting principles;
K. knowingly take or omit to take any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock action that is reasonably likely to result in any of its Subsidiaries) the conditions to the Merger set forth in Sections 7.01 or create 7.02 not being satisfied;
L. incur or guarantee any security interest in such assets or properties indebtedness for borrowed money other than in the ordinary course of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) M. except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as Section 5.01M of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, Schedules and except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practicepractices to employees (including Executive Officers), (ii) grantmake any change in the rate of compensation, paycommission, bonus or other direct or indirect remuneration payable, or pay or agree or orally promise to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to or for the benefit of any of its directors, officers, employees or agents, or enter into any SuperMedia employment or consulting contract (other than in the ordinary course consistent with past practices or as contemplated by this Agreement) or other agreement with any director, officer or employee or adopt, amend in any material respect or terminate any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or Employee Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to payagreement maintained by it for the benefit of its directors, to any current employees or former directoremployees, officerin each case except in the ordinary course of business and consistent with past practices, employeeas contemplated by this Agreement and as may be required by Legal Requirements;
▇. ▇▇▇▇▇▇ any Proceeding involving the payment by it of monetary damages in excess of $50,000 in the aggregate or imposing a material restriction on the operations of MBI, consultant or service provider of SuperMedia Business First or any SuperMedia Subsidiary of their respective Subsidiaries;
O. mortgage, pledge or Dex subject to Lien any of its property, business or Dex Subsidiary assets, corporeal or incorporeal, except (as applicablei) any severance or termination pay or any increase in severance or termination paystatutory liens not yet delinquent, (ii) landlord liens, (iii) increase minor defects and irregularities in title and encumbrances that do not materially impair the compensation or benefits provided under any SuperMedia Benefit Planuse thereof for the purpose for which they are held, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, and (iv) enter into pledges of assets to secure public funds deposits;
P. sell, transfer, lease to others or modify the terms otherwise dispose of any equity-based award granted under of its assets (except any SuperMedia Stock Plan sales of securities, sales of loans or Dex Stock Plansales or leases of property acquired by MBL Bank by foreclosure or otherwise, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Planin each instance, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not practices) or cancel or compromise any debt or claim, or waive or release any right or claim of a value in excess of $1,000,000 individually 100,000;
Q. make any capital expenditures or capital additions or betterments in excess of an aggregate of $2,000,000 in the aggregate, and that does not create binding precedent for other pending 100,000;
R. hire or potential Actionsemploy any new employee with an annual salary exceeding $40,000, or (ii) pursuant hire or employ any Person for any newly created position, provided, however, that MBI shall be entitled to the terms of replace any Contract in effect on the date hereof (copies of which have been provided to the Other Party employee whose employment is terminated prior to the date hereof)Closing at a salary and with benefits comparable to the terminated employee;
(p) take any actionS. sell or dispose of, or knowingly fail to take any action within its otherwise divest itself of the ownership, possession, custody or control, which action of any corporate books or failure to act would be reasonably expected to prevent records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) end of the Codenormal retention period;
T. materially change any method, practice or principle of accounting, except as may be required from time to time by GAAP (qwithout regard to any early adoption date) except or any Governmental Authority;
U. sell (other than for payment at maturity) or purchase any securities other than in the reasonable ordinary course of business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating V. make, commit to make, renew, extend the WARN Actmaturity of, or file alter any application of the material terms of any Loan in excess of $2,000,000 without Business First’s consent, which consent Business First will be deemed to have given unless it objects to the Loan within three Business Days of receiving a notice from MBI identifying the proposed borrower, the loan amount, and the material Loan terms;
W. make, commit to make any, renew, extend the maturity of, or alter any of the material terms of any Loan in excess of $100,000 to a borrower or to a known related interest of a borrower who has a loan with MBL Bank that is classified as “substandard”;
X. enter into any Governmental Entity acquisitions or leases of immovable property, including new leases and lease extensions, excluding the acquisition of property acquired by MBL Bank by foreclosure or otherwise; or
Y. enter into any contract, with respect to, or otherwise agree or commit to do do, any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex earlier of the Effective TimeTime or the termination of this Agreement, and except as set forth in Section 5.2 7.2 of the SuperMedia Disclosure Schedule or the Dex Bank Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shallthe Bank shall not, and neither SuperMedia nor Dex shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, which Sterling (and the Bank shall not be unreasonably withheld, delayed or conditioned:provide Sterling with prompt notice of any events referred to in this Section 7.2 occurring after the date hereof):
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or incur any indebtedness for borrowed money (ii) any SuperMedia IP owned by SuperMedia or other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of the SuperMedia Subsidiaries Bank or any Dex IP owned by Dex of its Subsidiaries to the Bank or any of its Subsidiaries; it being understood and agreed that incurrence of indebtedness in the Dex Subsidiariesordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, and sales of certificates of deposit), assume, guarantee, endorse or otherwise as applicablean accommodation become responsible for the obligations of any other Person, except for non-exclusive licenses of Intellectual Property made or make any loan or advance other than in the ordinary course of business consistent with past practicepractice and prudent banking practices;
(fb) except for borrowings under existing credit facilities (adjust, split, combine or renewalsreclassify any capital stock; make, extensions declare or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any termination fees shares of its capital stock; grant any stock options or penaltiesstock awards, prohibit pre-payments or provide grant any Person any right to acquire any shares of its capital stock; or issue any additional shares of capital stock (except upon exercise and conversion of Bank Options, as provided in Section 3.3 and Section 8.6), or any securities or obligations convertible into or exchangeable for any pre-payment penaltiesshares of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any Person, or contain cancel, release or assign any like provisions limiting indebtedness to such Person or otherwise affecting the ability of any claims held by any such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilitiesPerson, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred except in the ordinary course of business consistent with past practice, practice and prudent banking practices or for borrowings pursuant to contracts or other lines of credit or refinancing of indebtedness outstanding on agreements in force at the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by of this Agreement;
(d) make any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person material investment (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change trades in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 securities in the aggregate, whether ordinary course) either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investment, loan property or acquisitionassets of any other Person;
(je) enter into, terminate or fail to exercise any material right under, any contract or agreement involving annual payments in excess of $10,000 and which cannot be terminated without penalty upon 30 days’ notice, or make any change in, or extension of (other than automatic extensions) any of its leases or contracts involving annual payments in excess of $10,000 and which cannot be terminated without penalty upon 30 days’ notice;
(f) make, change renegotiate, renew, increase, extend or revoke purchase any material Tax election(i) loan, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
lease (k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”credit equivalent), or enter into or renew any agreement or contract advance, credit enhancement or other extension of credit, except (A) in conformity with existing lending practices of the Bank in amounts not to exceed $1,000,000 to any individual borrower, (B) loans or advances as to which the Bank or any Subsidiary has a legally binding obligation that is or, if it were on place to make such loan or advances as of the date hereofhereof and (C) loans fully secured by a certificate of deposit at the Bank; provided, would be a Material Contract however, that the Bank and its Subsidiaries may not make, renegotiate, renew, increase, extend or purchase any loan that is underwritten based on no verification of income or loans commonly known or referred to as “no documentation loans,” or (ii) loans, advances or commitments to directors, officers or other than normal renewals affiliated parties of such Contracts without materially adverse changes, additions the Bank or deletions any of terms)its subsidiaries;
(lg) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Bank Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereofincluding any severance pay plan) or increase or modify in any manner the compensation or fringe benefits of any of its Employees (ix) establishincluding, adopt or enter without limitation, entering into any collective bargaining commitment to pay any “stay bonuses” or similar benefits) or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth routine adjustments in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) compensation and fringe benefits in the ordinary course of business consistent with past practice or accelerate the vesting of any stock options or other stock-based compensation; provided, that involves solely money damages the Bank may pay accrued bonuses in an amount not to exceed $20,000 prior to the Closing;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof)10,000;
(pi) take any action, amend its articles of association or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Codebylaws;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(sj) fail to maintain in full force and effect the its Regulatory Agreements, material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business Authorizations or to file in a form timely fashion all federal, state, local and amount consistent with past practicesforeign Tax Returns;
(tk) open make any material new offices capital expenditures of more than $10,000 individually or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating $50,000 in the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicableaggregate;
(ul) except as fail to maintain or administer each Bank Benefit Plan in accordance with applicable Law or timely make all contributions or accruals required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement thereunder in accordance with respect to the voting of capital stock of SuperMedia or DexGAAP;
(vm) take any action that is intended or is may reasonably likely be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue at any time prior to the Effective Time, or in any of the conditions to the Mergers Merger set forth in Article VII X not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(n) change any methods or policies of accounting from those used in the Bank Financial Statements;
(o) take or cause or permit to be taken any action, whether before or after the Effective Time, which would disqualify the Merger as a tax-free reorganization within the meaning of Section 368 of the Code (subject to required recognition of gain or loss with respect to cash paid for shares pursuant hereto);
(p) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Bank or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Bank or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Bank or any of its Subsidiaries for any period ending after the Closing Date or decreasing any Tax attribute of the Bank or any of its Subsidiaries existing on the Closing Date;
(q) make any material changes to its allowance for loan losses or to its securities portfolio; or
(wr) commit agree, or agree make any commitment, to take take, in writing or otherwise, any of the actions contemplated by Sections 5.2(adescribed in clauses (a) to through (vq) aboveof this Section 7.2.
Appears in 1 contract
Forbearances. Without limiting Except as contemplated by this Agreement or as set forth on Schedule 5.2, the generality Company will not take any of Section 5.1 abovethe following actions, during and as a partner in Chroma, shall not give approval of the period taking of any such actions by Chroma, from the date of this Agreement to hereof until the Dex earlier of
(a) the Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule Time or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to(b) termination under Article IX, without the prior written consent of Dex or SuperMedia, as applicable, Buyer which shall not be unreasonably withheld, delayed or conditioned:
(a) (i) sell, assign, lease or transfer any of the Assets that are material singly or in the aggregate to the Company, its Subsidiaries and Chroma taken as a whole, other than dividends and distributions by a direct Assets sold or indirect Subsidiary disposed of in the ordinary course of business, consistent with past practice, to such Party persons who are not Affiliates of the Company, its Subsidiaries or to any direct Chroma for fair consideration;
(ii) cancel or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect ofterminate, or enter into amend, modify or waive any agreement with respect to the voting material term of, any Material Contract to which it is a party or by which it or any of its capital stock, the Assets is bound;
(iiA) split, combine increase the compensation payable or reclassify to become payable to any of its capital stock directors or any other of its securitiesofficers, (iiiB) except as described in Section 2.6(d) increase the base compensation payable or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or become payable to any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities Personnel (other than the withholding of shares of common stock to satisfy the exercise price directors or Tax withholding upon the exercise of stock optionsofficers), vesting of restricted shares or settlement of stock units or stock appreciation rightsexcept for normal periodic increases in such base compensation (not exceeding, in each case that are outstanding as case, 5%) in the ordinary course of business, consistent with past practice, (C) increase the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge sales commission rate payable or otherwise encumber or subject to become payable to any Lien any shares of its capital stockPersonnel, (D) grant, make or accrue any other voting securitiesloan, including any restricted shares of its common stockbonus, or any securities convertible intofee, or any rightsincentive compensation (excluding sales commissions), warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws service award or other comparable organizational documents like benefit, contingently or otherwise, to or for the organizational documents benefit of any of its SubsidiariesPersonnel, except pursuant to the Employee Plans set forth in Schedule 3.23, (E) adopt or amend any Employee Plan (other than any option grants under any Employee Plan referred to in clause (F) of this clause (iii)), other than (1) contributions made in the ordinary course of business, consistent with past practice or (2) the extension of coverage to any of its Personnel who became eligible after the date of this Agreement, (F) grant any additional stock options or performance unit grants or other interest under any Employee Plan, (G) enter into any new employment or consulting agreement or any written or oral termination, cancellation or amendment of any such employment or consulting agreement to which it is a party (except with respect to any employee at will without a written agreement), (H) enter into any collective bargaining agreement or terminate or amend any collective bargaining agreement to which it is a party or (I) with respect to any Shareholder, any other Affiliate or any Affiliate of any Shareholder, grant, make or accrue any payment or distribution or other like benefit, contingently or otherwise, or otherwise transfer Assets, including any payment of principal of or interest on any debt owed to any such Shareholder or Affiliate, other than (1) any payments to such person in the ordinary course of business in his capacity as an employee or a director or independent contractor of the Company, its Subsidiaries or Chroma, (2) any transactions between the Company and Chroma, in the ordinary course of business and on an arms' length basis and (3) principal and interest payments on indebtedness reflected in the Interim Financial Statements;
(div) acquire make any capital expenditure or agree commitment to acquire by merging make any capital expenditure except in accordance with the aggregate dollar limits set forth in the 1999 capital expenditure plan of the Company, its Subsidiaries and Chroma, true, correct and complete copies of which are set forth in Schedule 3.10;
(v) execute or consolidating withpropose in writing to execute (A) any Lease for real property or (B) any Lease for personal property involving annual payments in excess of $50,000;
(vi) make any material payments or give any other material consideration to customers or suppliers, other than (A) payments or by purchasing any assets or any equity securities consideration made under, and in accordance with the terms of, or by any other mannerContracts in effect on the date hereof, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets (B) trade discounts and rebates in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations practice or consolidations;
(eC) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose payment of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than accounts payable incurred in the ordinary course of business consistent with past practicebusiness;
(vii) change its accounting methods, principles or practices, including any change in the application or interpretation of GAAP other than as and to the extent required by GAAP;
(viii) (A) issue or sell, or enter into any agreement obligating it to issue or sell, (B) declare, set aside for payment or pay dividends or distributions in respect of, or (iiC) other than as contemplated by Article II of this Agreement with respect to the outstanding Preferred Shares and Executive Stock Options, directly or indirectly redeem, purchase or otherwise acquire, or split, combine, reclassify or otherwise adjust, any SuperMedia IP owned by SuperMedia class or series of capital stock;
(A) except for advances under the Factoring Agreement dated January 26, 1995, as amended, between the Company and Trust Company Bank, incur any indebtedness for borrowed money or enter into any commitment to borrow money or (B) incur any obligations for any performance bonds, payment bonds, bid bonds, surety bonds, letters of credit, guarantees or similar instruments;
(x) take any action in anticipation of the sale of the Business or for any other reason to delay or defer expenses (including delay or postponement of capital expenditures or the SuperMedia Subsidiaries payment of accounts payable), liabilities or obligations of any Dex IP owned by Dex kind whatsoever or the Dex Subsidiariesto accelerate any income, as applicablerevenue, except for non-exclusive licenses of Intellectual Property made payment or similar item, other than in the ordinary course of business consistent with past practice;
(fxi) pay, discharge or satisfy any material liability other than (A) any such payment, discharge or satisfaction in the ordinary course of business, consistent with past practice, of liabilities under, and in accordance with the terms of, any Contracts, Licenses and Permits and other commitments set forth in the Schedules or under Contracts (Material or other), Licenses and Permits and other commitments which are not required to be disclosed in the Schedules and (B) payments or prepayments, whether or not in the ordinary course of business, of principal and interest in respect of Company Debt;
(xii) change or amend its certificate or articles of incorporation or bylaws or agree to any amendments to the Chroma partnership agreement;
(A) acquire (by merger, consolidation, acquisition of stock, other securities or assets or otherwise), (B) make a capital investment (whether through the acquisition of an equity interest, the making of a loan or advance or otherwise) in or (C) guarantee indebtedness for borrowed money of, (1) any Person (other than a Subsidiary) or (2) any portion of the assets of any Person that constitutes a division or operating unit of any Person (other than a Subsidiary);
(xiv) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability factoring of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred receivables in the ordinary course of business consistent with past practice, mortgage or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorsepledge, or otherwise become responsible for the obligations of make any Person Encumbrance (other than any Permitted Encumbrance) on, any material Asset or group of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employeesAssets that are material in the aggregate;
(gxv) change in revalue any material respect of its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or businessAssets, including any reserving, renewal write-off of notes or residual method, practice accounts receivable or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change increase in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract reserve (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice), involving in excess of $25,000 individually or $100,000 in the aggregate (iisuch amounts to be calculated without netting any decrease);
(xvi) grantcancel, paywaive or release any right or claim (or series of related rights or claims), promise to payother than as set forth in clause (xv), involving in excess of $25,000 individually or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement $100,000 in the aggregate;
(as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (vxvii) make any discretionary contributions material change in the policies or payments with respect practices relating to any SuperMedia Benefit Planselling practices, SuperMedia Employment Agreementreturns, Dex Benefit Plan, or Dex Employment Agreement to any trust discounts or other funding vehicle, terms of sale or accounting therefor or in policies of employment except as and to the extent required by Law; or
(vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (viixviii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Sources: Merger Agreement (Collins & Aikman Floor Coverings Inc)
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shallCompany shall not, and neither SuperMedia nor Dex shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, which Sterling (and the Company shall not be unreasonably withheld, delayed or conditioned:provide Sterling with prompt notice of any events referred to in this Section 7.02 occurring after the date hereof):
(a) incur any indebtedness for borrowed money (i) other than dividends short-term indebtedness incurred to refinance short-term indebtedness and distributions by a direct indebtedness of the Company or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate Subsidiaries to the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities Company or any of its Subsidiaries; it being understood and agreed that this Section 7.02(a) shall not prevent the incurrence of indebtedness by the creation of deposit liabilities, or any rightspurchase of federal funds, warrants or options to acquire any such shares or other securities (other than the withholding Federal Home Loan Bank advances, and sale of shares certificates of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock optionsdeposit), vesting of restricted shares or settlement of stock units or stock appreciation rightsassume, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issueguarantee, deliver, sell, pledge endorse or otherwise encumber or subject to any Lien any shares as an accommodation become responsible for the obligations of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire make any loan or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties advance other than in the ordinary course of business consistent with past practicepractice and prudent banking practices;
(b) adjust, split, combine or reclassify any capital stock; make, declare or pay any dividend or make any other distribution on (other than the payment of dividends by the Bank to enable the Company to satisfy its obligations and interest with respect to the Company Debentures in accordance with their respective terms and provisions), or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or, except as specifically provided herein, any securities or obligations convertible into or exchangeable for any shares of its capital stock, grant any stock options or stock awards, or grant any Person any right to acquire any shares of its capital stock; or issue any additional shares of capital stock (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries except upon conversion of Company Debentures as provided in Sections 3.02 and 8.04), or any Dex IP owned securities or obligations convertible into or exchangeable for any shares of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any Person, or cancel, release or assign any indebtedness to such Person or any claims held by Dex or the Dex Subsidiaries, as applicableany such Person, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practicepractice and prudent banking practices or pursuant to contracts or agreements in force at the date of this Agreement;
(fd) except for borrowings under existing credit facilities make any material investment (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, other than trades in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred investment securities in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(gcourse) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investment, loan property or acquisitionassets of any other Person;
(je) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amendinto, terminate or waive fail to exercise any material provision of right under, any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures agreement involving annual payments in excess of $5,000,000 15,000 and which cannot be terminated without penalty upon 30 days' notice, or make or allow any change in, or extension of any of its leases or contracts involving annual payments in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, excess of $15,000 and which plan has been made available to the Other Party prior to the date hereofcannot be terminated without penalty upon 30 days' notice;
(mf) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Company Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereofincluding any severance pay plan) or (ix) establishincrease or modify in any manner the compensation or fringe benefits of any of its Employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, adopt or enter into become a party to, amend or commit itself to any collective bargaining pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth routine adjustments in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) compensation and fringe benefits in the ordinary course of business consistent with past practice or accelerate the vesting of any stock options or other stock-based compensation; provided, however, that involves solely the Company and/or the Bank may pay at or immediately prior to Closing the Retention Bonuses (defined in Section 8.16) and the payment due under the agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ as provided for in Section 8.17.
(g) settle any claim, action or proceeding involving the payment of money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof)25,000;
(ph) take any action, amend its Articles of Incorporation or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the CodeBylaws;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(si) fail to maintain in full force and effect the its Regulatory Agreements, material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business Authorizations or to file in a form timely fashion all federal, state, local and amount consistent with past practicesforeign Tax Returns;
(tj) open make any material new offices capital expenditures of more than $15,000 individually or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating $50,000 in the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicableaggregate;
(uk) except as fail to maintain or administer each Company Benefit Plan in accordance with applicable Law or timely make all contributions or accruals required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement thereunder in accordance with respect to the voting of capital stock of SuperMedia or DexGAAP;
(vl) take any action that is intended or is may reasonably likely be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue at any time prior to the Effective Time, or in any of the conditions to the Mergers Merger set forth in Article VII IX not being satisfied or in a violation of any provision of this Agreement; or, except, in every case, as may be required by applicable law;
(wm) commit change any methods or agree policies of accounting from those used in the Company Financial Statements including those policies relating to take deferral of expenses, recognition of income and similar actions;
(n) agree, or make any commitment, to take, in writing or otherwise, any of the actions contemplated by Sections 5.2(adescribed in clauses (a) to through (vm) aboveof this Section 7.02.
Appears in 1 contract
Forbearances. Without limiting From the generality Execution Date until the Closing, each of Section 5.1 abovethe Parties covenants and agrees to ensure that neither OXMI nor Seller (with regard to Hotel Corporation and the Hotel Business), during the period from the date of other than as contemplated in this Agreement or as otherwise disclosed in writing to the Dex Effective Timeother Party or subject to public disclosure, except as set forth in Section 5.2 do any of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, following without the prior written consent of Dex or SuperMedia, as applicablethe other Party, which consent shall not be unreasonably withheld, delayed or conditioned:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside aside, make or pay any dividends on, make any dividend or other distributions distribution in respect ofof its capital stock or otherwise purchase or redeem, directly or indirectly, any shares of its capital stock;
(b) issue, sell or deliver or enter into any agreement with respect to the voting ofissue, any of its capital stock, (ii) split, combine sell or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire deliver any shares of its capital stock or other securities or any of its Subsidiariesoptions, warrants, or any other rights, warrants agreements, commitments, arrangements or options understandings of any kind, contingent or otherwise, to acquire purchase, sell or deliver any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stockshares, or any securities convertible into, into or any rights, warrants or options to acquire, exchangeable for any such shares, voting securities or convertible securities, including effect any stock options and unit awards (other than the issuance of split, or otherwise change, combine or reclassify its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms)authorized capitalization;
(c) amend its certificate of incorporation, bylaws incur any indebtedness or other comparable organizational documents issue or the organizational documents of sell any of its Subsidiariesdebt securities or prepay any debt;
(d) acquire mortgage, pledge or agree otherwise subject to acquire by merging any material lien or consolidating with, or by purchasing any assets or any equity securities of, or by any other mannerlease, any business of its properties or assets, tangible or intangible or permit or suffer any Person, such property or otherwise acquire asset to be subjected to any material lien or agree to acquire lease; or license or dispose of any material assets, except for acquisitions of inventory or other similar assets in the ordinary course Ordinary Course of business Business consistent with past its prior practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage forgive or otherwise encumber cancel any debts or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f))claims, or otherwise dispose of (i) waive any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicablerights, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practicefair value;
(f) except for borrowings under existing credit facilities (modify or renewals, extensions or replacements therefor that do not increase extend the aggregate amount available thereunder and that do not provide for current term of any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penaltiesmaterial agreement, or contain waive any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employeesmaterial rights thereunder;
(g) change pay any bonus to any employee or agent or contractor, or grant to any employee or agent or contractor any increase in compensation except in the Ordinary Course of Business consistent with its prior practice, or enter into any material respect its accounting methods (employment, severance, termination or underlying assumptions), principles similar agreement with any employee or practices affecting its assets, liabilities agent or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principlescontractor;
(h) enter into any new line amend its Certificate of business Incorporation or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it Bylaws or any of its Subsidiariesother organizational documents;
(i) make any investment material changes in policies or loan practices relating to any Person business practices or other terms accounting therefore or in excess policies of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisitionemployment;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount type of Taxes, settle business not conducted by it as of the Execution Date or create or organize any material Tax claim subsidiary or assessment enter into or surrender participate in any right to claim a refund of a material amount of Taxesjoint venture or partnership;
(k) except as otherwise expressly permitted contemplated by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure ScheduleAgreement, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract transactions with any Affiliates or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of make any amendment or modification to any such Contracts without materially adverse changes, additions or deletions of terms)agreement;
(l) make or incur, change any election in respect of Taxes or enter into settle any Contract obligating such Party claim related to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;Taxes; or
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any contract, commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity arrangement to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Best Disclosure Schedule or the Dex Hiway Disclosure Schedule, as applicablethe case may be, as required by applicable Law, or and except as expressly contemplated or permitted by this Agreement, neither SuperMedia Best nor Dex Hiway shall, and neither SuperMedia nor Dex Hiway shall not permit any SuperMedia its Subsidiary or Dex Subsidiary, as applicable, to, without the prior written consent of Dex or SuperMedia, as applicable, which shall not be unreasonably withheld, delayed or conditionedthe other:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(b) (i) adjust, split, combine or reclassify any capital stock; (ii) make, declare or pay any SuperMedia IP owned dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock; (iii) grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock (and no such rights or options shall be granted, except as otherwise agreed in writing by SuperMedia Best and Hiway); or (iv) issue any additional shares of capital stock except pursuant to the exercise of stock options or warrants or the SuperMedia Subsidiaries conversion of convertible securities outstanding as of the date of this Agreement or approved hereunder;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any Dex IP owned claims held by Dex or the Dex Subsidiaries, as applicableany such person, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practicepractice or pursuant to contracts or agreements in force at the date of this Agreement;
(fd) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred transactions in the ordinary course of business consistent with past practice, practice or for borrowings pursuant to contracts or other lines of credit or refinancing of indebtedness outstanding on agreements in force at the date hereof in additional amounts not to exceed $5,000,000of this Agreement, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether either by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to purchase of any such investmentproperty or assets of any other individual, loan corporation or acquisitionother entity other than a Subsidiary;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(ke) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases transactions in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to payenter into or terminate any material contract or agreement, or enter into make any SuperMedia Benefit Plan change in any of its material leases or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement contracts, other than renewals of contracts and leases without material adverse changes of terms;
(as applicablef) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase any manner the compensation or fringe benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under of its employees or pay any SuperMedia Stock Plan pension or Dex Stock Plan, (v) make retirement allowance not required by any discretionary contributions existing plan or payments with respect agreement to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plansuch employees, or Dex Employment Agreement become a party to, amend or commit itself to any trust pension, retirement, profit-sharing or other funding vehicle, (vi) accelerate welfare benefit plan or agreement or employment agreement with or for the payment or vesting benefit of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely or accelerate the vesting of any stock options or other stock-based compensation;
(g) settle any claim, action or proceeding involving money damages in an amount not in excess of $1,000,000 individually or $2,000,000 damages, except in the aggregate, and ordinary course of business consistent with past practice;
(h) take any action that does not create binding precedent would prevent or impede the Merger from qualifying (i) for other pending or potential Actions, "pooling of interests" accounting treatment or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” reorganization within the meaning of Section 368(a) 368 of the Code;
(qi) amend its Articles of Incorporation or its Bylaws, except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned as contemplated by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiarythis Agreement;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(vj) take any action that is intended or is may reasonably likely be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Mergers Merger set forth in Article VII of this Agreement not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law or existing contractual obligations; or
(wk) commit agree to, or agree to make any commitment to, take any of the actions contemplated prohibited by Sections 5.2(a) to (v) abovethis Section 5.2.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement until the earlier of the termination of this Agreement pursuant to Article 6 or the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this AgreementAgreement or as otherwise indicated in this Section 4.2, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex the Company shall permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, tonot, without the prior written consent of Dex the chief executive officer or SuperMedia, as applicable, chief financial officer of Parent (which consent shall not be unreasonably withheld, delayed withheld or conditioned:delayed):
(a) amend the Company’s or its Subsidiaries’ Organizational Documents or any resolution or agreement concerning indemnification of their respective directors or officers;
(b) except for Permitted Issuances and except as provided in Section 4.3, (i) other than dividends and distributions by a direct adjust, split, combine, subdivide or indirect Subsidiary to such Party or to reclassify any direct or indirect wholly owned Subsidiary of such Partycapital stock, (ii) make, declare, set aside or pay any dividends on, dividend or make any other distributions in respect ofdistribution on, or enter into any agreement with respect to the voting ofdirectly or indirectly redeem, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem purchase or otherwise acquire acquire, any shares of its capital stock or other any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of Company Capital Stock or capital stock of any of its Subsidiaries, or (iii) grant any rights, warrants or options to acquire any such shares Company Options or other securities Rights, (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(biv) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stockpledge, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities dispose of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assigngrant, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f))guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of (i) Company Capital Stock or capital stock of any of its properties Company’s Subsidiaries, or assets (including capital stock v) make any change in any instrument or Contract governing the terms of any of Company’s or its Subsidiaries’ securities;
(c) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practiceor pursuant to Contracts in force at the date of, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiariespermitted by, as applicablethis Agreement, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether (either by purchase of stock or securities, contributions to capital, property transfers, or entering purchase of any property or assets) in any other Person;
(d) charge off (except as may otherwise be required by law or by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with past practices) any of its portfolio of loans, discounts or financing leases, or sell any asset held as other real estate or other foreclosed assets for an amount materially less than 100% of its book value;
(e) terminate or allow to be terminated any of the policies of insurance the Company and its Subsidiaries maintain on their respective businesses or Properties, cancel any material indebtedness owing to the Company or its Subsidiaries or any claims that the Company or its Subsidiaries may have possessed, or waive any right of substantial value or discharge or satisfy any material noncurrent liability;
(f) enter into binding agreements any new line of business, or change the Company’s or its Subsidiaries’ lending, investment, underwriting, risk and asset liability management, loan loss reserve and other banking and operating policies, except as required by applicable Laws or any policies imposed on it by any Governmental Authority;
(g) except in the ordinary course of business consistent with respect past practices: (i) lend any money or pledge any of the Company’s or its Subsidiaries’ credit in connection with any aspect of the Company’s or its Subsidiaries’ businesses whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any such investmentlien, loan encumbrance or acquisitionother liability any of the Company’s or its Subsidiaries’ assets, (iii) sell, assign or transfer any of its assets in excess of $25,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except (A) in the ordinary course of business or (B) pursuant to Contracts in force as of the date of this Agreement and disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of the Company’s or its Subsidiaries’ material Intellectual Property;
(h) other than in the ordinary course of business, incur any indebtedness for borrowed money other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than in consultation with Parent, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported except in the ordinary course, consistent with past practices;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount Contract other than renewals of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund Contracts of a material amount of Taxes;
(k) except as expressly permitted by terms for less than one year and without any other provision of this Section 5.2 or as set forth materially adverse change in terms and, other than in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amendordinary course of business, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals nonrenewals of such Contracts without materially adverse changes, additions or deletions of in accordance with their terms);
(lk) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 other than in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or ordinary course of business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or Benefit Plans and Contracts as provided by in effect at the date of this Agreement, (i) grant increase in any manner the compensation or fringe benefits of any of the Company’s or its Subsidiaries’ officers, employees or directors, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any current such officers, employees or former directordirectors, (iii) become a party to, amend or commit to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any such officer, employee or consultant director, or (iv) accelerate the vesting of, or the lapsing of Dex restrictions with respect to, Rights pursuant to any Company Stock Plan;
(l) settle any material Litigation;
(m) revalue any of the Company’s or any Dex Subsidiary of its Subsidiaries’ assets or SuperMedia materially change any method of accounting or accounting practice used by it or any SuperMedia Subsidiary of its Subsidiaries, other than changes required by GAAP;
(n) file or amend any increase in compensation, Tax Return except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, business; settle or compromise any Actionmaterial Tax Liability; or make, other than any such payment, discharge, settlement change or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open revoke any material new offices Tax election or facilities or relocate or close change any material existing offices or facilities or implement any layoffs implicating the WARN Actmethod of Tax accounting, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(vo) take knowingly take, or knowingly omit to take, any action that is intended or is reasonably likely to result in any of the conditions to the Mergers Merger set forth in Article VII 5 not being satisfied satisfied, except as may be required by applicable Law;
(p) merge or consolidate the Company or any of its Subsidiaries with, or sell or otherwise transfer the issued and outstanding stock of the Company or any of its Subsidiaries to, any Person;
(q) acquire assets outside of the ordinary course of business not consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) make any adverse changes in the mix, rates, terms or maturities of the Bank’s deposits or other Liabilities;
(s) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed applicable regulatory lending limits;
(t) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of which policies has been provided to Parent; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that the Company will allow a violation representative of Parent to be present for informational purposes only at all meetings of the Board of Directors or any provision committee of the Bank at which the Board of Directors or any committee thereof will vote on proposed new or renewal loans or investments and such Parent representative shall not take part in discussions or voting on any matters presented at such meetings (in furtherance of which, the Company has, concurrently with the execution of this Agreement, provided to Parent a calendar of such board or committee meetings of the Bank, and will promptly provide to Parent any updates to such calendar after the date hereof);
(u) take any action that at the time of taking such action is reasonably likely to prevent, or would be reasonably likely to interfere with, the consummation of the Merger; or
(wv) commit enter into any agreement or agree commitment to take any of the actions contemplated prohibited by Sections 5.2(a) to (v) abovethis Section 4.2.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 aboveExcept as set forth on Schedule 4.02 or as otherwise contemplated by this Agreement, during the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, Seller shall not and neither SuperMedia nor Dex shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, which shall not be unreasonably withheld, delayed or conditionedBuyer:
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends onor other distributions, make any other distributions directly or indirectly, in respect ofof its capital stock (other than dividends from a Subsidiary of Seller to Seller or another Subsidiary of Seller), except that Seller may declare and pay cash dividends on the Seller Common Stock of not more than $.15 per share per quarterly period; provided, that Seller shall not declare any dividends on Seller Common Stock or Seller Preferred Stock during any quarter in which its stockholders will be entitled to receive any regular quarterly dividend on the shares of Buyer Common Stock to be issued in the Merger; or
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director or officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except normal individual increases in compensation to employees consistent with past practice, or as required by law or contract; or
(c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into any an agreement in principle with respect to the voting ofto, any of its capital stockmerger, (ii) split, combine consolidation or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities business combination (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereofMerger);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares acquisition or disposition of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards a material amount of assets (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary usual course of business consistent with past practicepractices) including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights; providedor
(d) propose or adopt any amendments to its articles of incorporation, that the foregoing shall not prohibit internal reorganizations association or consolidations;other charter document or bylaws; or
(e) issue, sell, assigngrant, transfer, lease, license, mortgage confer or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) award any of its properties or assets Equity Securities (including capital stock in any except shares of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course Seller Common Stock issued upon exercise of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness Seller Stock Options outstanding on the date hereof in additional amounts not to exceed $5,000,000of this Agreement) or effect any stock split or adjust, combine, reclassify or Indebtedness owed by any wholly owned Subsidiary to such Party otherwise change its capitalization as it existed on the date of this Agreement; or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur(f) purchase, redeem, prepayretire, defease, cancelrepurchase, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorseexchange, or otherwise become responsible for the obligations of any Person (other than acquire or dispose of, directly or indirectly, any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregateEquity Securities, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, such Equity Securities or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreementotherwise; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during the period from the date Commencing upon execution of this Agreement and continuing through to the Dex Effective Timeearlier of the Closing or the termination of this Agreement pursuant to Section 9.1, except as set forth in Section 5.2 6.2 of the SuperMedia Company Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shallthe Company shall not, and neither SuperMedia nor Dex the Company shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, Parent (which consent shall not be unreasonably withheld, delayed withheld or conditioned:delayed):
(a) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance, in excess of $5,000,000 in the aggregate;
(ib) adjust, split, combine or reclassify any capital stock, except for any such transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction;
(c) make, declare or pay any dividend other than dividends and or distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Partythe Company to its parent or to another direct or indirect wholly owned Subsidiary of the Company, declare, set aside or pay any dividends on, make any other distributions in respect ofdistribution on, or enter into any agreement with respect to the voting ofdirectly or indirectly redeem, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem purchase or otherwise acquire or encumber, any shares of its capital stock or other any securities or any obligations convertible (whether currently convertible or convertible only after the passage of its Subsidiaries, time or any rights, warrants the occurrence of certain events) into or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien exchangeable for any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, except in connection with cashless exercises or any securities convertible into, or any rights, warrants or options similar transactions pursuant to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are options issued and outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or under the organizational documents of any of its SubsidiariesCompany Stock Plans;
(d) acquire subject to Section 6.2(l), grant to any individual, corporation or agree other entity any right to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions shares of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidationsits capital stock;
(e) sellissue any shares of capital stock of the Company, assign, transfer, lease, license, mortgage or otherwise encumber or subject except pursuant to any Lien (other than Liens in connection with any Indebtedness permitted the exercise of stock options outstanding as of the date hereof under Section 5.2(f))the Company Stock Plans, or otherwise dispose any other securities convertible into shares of (i) any Company Common Stock issued and outstanding as of the date hereof and in accordance with its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practiceterms;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;INTENTIONALLY LEFT BLANK
(g) change amend or terminate the Rights Agreement, other than in any material respect its accounting methods (or underlying assumptionsconnection with a transaction entered into pursuant to Section 9.1(e), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into sell, transfer, mortgage, encumber or otherwise dispose of any new line of its lines of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiariesmaterial properties or assets to any individual, corporation or other entity, other than to a wholly owned Subsidiary, or cancel, release or assign any material indebtedness to any such person or any claims held by any such person, except pursuant to contracts or agreements in force at the date thereof or, in the case of cancellation or release of material indebtedness, as a result of debt collections;
(i) make any investment in pay, or loan agree to any Person in excess pay, cash consideration of more than $5,000,000 25,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect purchase of any property or assets of any other individual, corporation or other entity other than to a wholly owned Subsidiary of the Company or any such investment, loan or acquisitionwholly owned Subsidiary thereof;
(j) maketerminate, change or revoke amend or waive any material Tax electionprovision of, change an annual Tax accounting periodany Company Contract, adopt as the case may be, or change make any material Tax accounting method, file change in any material amended Tax Return, enter into instrument or agreement governing the terms of any closing agreement with respect to a material amount of Taxes, settle any material Tax claim lease or assessment or surrender any right to claim a refund of a material amount of Taxescontract;
(k) except as expressly permitted by establish, adopt, amend or terminate any other provision of this Section 5.2 Company Benefit Plan, or as set forth in amend the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision terms of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms)outstanding equity based award;
(li) establish, or increase compensation or benefits provided under, or make any payment not required by, any stay, bonus, incentive, insurance, severance, termination, change of control, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, restricted stock awards or incursimilar instruments), stock purchase or other employee benefit plan, program, policy, or agreement or arrangement or (ii) otherwise increase or accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any of its current or former directors, officers, employees, consultants or service providers or those of any Subsidiary, or otherwise pay any amounts not due such individual, (iii) enter into any new or amend any existing employment or consulting agreement with any director, officer, employees, consultants or service provider or retain the services of any such person if the compensation (base and bonus) shall exceed $250,000 or (iv) establish, adopt or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregatecollective bargaining agreement, except for capital in each of clauses (i) and (ii), as may be required to comply with applicable law or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereofcontractual arrangements;
(m) except as required by agreements or instruments in effect on the date hereof, alter in settle any material respectclaim, action or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereofproceeding;
(n) except amend its certificate of incorporation or its bylaws or, in the case of the Company, enter into any agreement with its stockholders in their capacity as required by such;
(o) take any action that is intended or would reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue such that the terms condition set forth in Section 8.3(a) shall be incapable of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, satisfaction;
(ip) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases other than in the ordinary course of business consistent with past practice, (iii) grantsell, payassign, promise to payotherwise transfer, sublicense or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, material license agreement with respect to any current Company Intellectual Property used by it in its business or former directorbuy or enter into any material license agreement with respect to Third Party Intellectual Property; (ii) sell, officer, employee, consultant license or service provider of SuperMedia transfer to any person or entity any SuperMedia Subsidiary material rights to any Company Intellectual Property Rights used by it in its business; or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify materially amend any Company Contract, as the terms case may be, pursuant to which any other party is granted marketing or distribution rights of any equity-based award granted under any SuperMedia Stock Plan type or Dex Stock Plan, (v) make any discretionary contributions or payments scope with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, material products or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting services of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia its or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the CodeSubsidiaries;
(q) except in enter into any “non-compete” or similar agreement that would materially restrict the reasonable business judgment businesses of the holder Surviving Corporation or its Subsidiaries following the Effective Time or that reasonably would be expected to restrict the businesses of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex SubsidiaryParent and its Subsidiaries (excluding the Surviving Corporation and its Subsidiaries);
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such Party entity, other than in relation to a wholly owned Subsidiary of the Company or any wholly owned Subsidiary thereof, and other than a merger of its Subsidiariesa wholly owned Subsidiary of the Company or any wholly owned Subsidiary thereof with or into a third party in which the sole consideration to be issued in such transaction to such third party is cash solely to the extent such transaction is permitted by, and is in accordance with, clause (i) of this Section 6.2;
(s) fail to maintain implement or adopt any change in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective propertiesaccounting principles, assets and business in a form and amount practices or methods, other than as consistent with past practicesor as may be required by law, GAAP or regulatory guidelines;
(t) open settle or compromise any material new offices or facilities or relocate or close liability for Taxes, file any material existing offices or facilities or implement any layoffs implicating the WARN Actamended Tax Return, or file any application material Tax Return in a materially inconsistent manner with past practice (except as otherwise required by law), make any Governmental Entity to do material Tax election (other than in the ordinary course of business) or change any material method of the foregoing, except accounting for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicableTax purposes;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contractnew, understanding or arrangement with respect to the voting of capital stock of SuperMedia amend or Dex;otherwise alter any current, Company Affiliate Transaction; or
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions contemplated prohibited by Sections 5.2(a) to (v) abovethis Section 6.2.
Appears in 1 contract
Sources: Merger Agreement (Ask Jeeves Inc)
Forbearances. Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or Except as expressly contemplated or permitted by this Agreement, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any SuperMedia Subsidiary Agreement or Dex Subsidiary, as applicable, torequired by Legal Requirement, without the prior written consent of Dex or SuperMedia, as applicable, which Investar (and any such consent shall not be unreasonably withheldconditioned or delayed), delayed or conditioned:CFG will not (and will cause each of its Subsidiaries not to):
(aA) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect new material line of business or change its lending, investment, underwriting, risk and asset liability management and other material banking and operating policies in any material respect;
(B) open, close or relocate any branch office, or acquire or sell or agree to acquire or sell any branch office or deposit liabilities;
(C) issue, sell or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the voting creation of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any additional shares of its capital stock or other securities or any permit new shares of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof)become subject to new grants;
(bD) issue, delivergrant or accelerate the vesting of any option, sellrestricted stock award, pledge warrant, call, commitment, subscription, right to repurchase or otherwise encumber agreement of any character related to the authorized or subject to any Lien any shares issued capital stock of its capital stock, any other voting securities, including any restricted shares of its common stockCFG or Cheaha Bank, or any securities convertible intoits shares of such stock;
(E) directly or indirectly adjust, or any rightssplit, warrants or options to combine, redeem, reclassify, purchase of otherwise acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance shares of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms)stock;
(cF) amend its certificate sell, transfer, mortgage, encumber or otherwise dispose of incorporation, bylaws or other comparable organizational documents or the organizational documents of discontinue any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating withassets, or by purchasing any assets or any equity securities ofdeposits, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assetsproperties, except for acquisitions of inventory sales, transfers, mortgages, encumbrances or other similar assets dispositions or discontinuances in the ordinary course of business consistent with past practice; providedpractice and in a transaction that, that the foregoing shall together with other such transactions, is not prohibit internal reorganizations material to CFG or consolidationsCheaha Bank, taken as a whole;
(eG) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien acquire (other than Liens by way of foreclosures or acquisitions of control in connection a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary and usual course of business consistent with past practice) all or any Indebtedness permitted under Section 5.2(f))portion of the assets, or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets business, deposits or properties of any other than Entity or enter into any other transaction, except in the ordinary course of business consistent with past practicepractice and in a transaction that, or (ii) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex together with other such transactions, is not material to it and its Subsidiaries, taken as applicablea whole;
(H) enter into, except amend, renew or terminate any agreement of the type that is or would be required to be disclosed in Section 3.13(A) of the Schedules other than as contemplated by this Agreement, unless the agreement is to be performed in full prior to the Closing;
(I) amend its Constituent Documents or those of its Subsidiaries;
(J) implement or adopt any change in its accounting principles or policies, other than as may be required by GAAP or regulatory accounting principles;
(K) knowingly take or omit to take any action that is reasonably likely to result in any of the conditions to the consummation of the Contemplated Transactions set forth in Sections 7.01 or 7.02 not being satisfied;
(L) incur or guarantee any indebtedness for non-exclusive licenses of Intellectual Property made borrowed money other than in the ordinary course of business consistent with past practice;
(fM) except as set forth in Section 5.01(M) of the Schedules, make any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or pay or agree or orally promise to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to or for borrowings under existing credit facilities the benefit of any of its directors, officers, employees or agents, or enter into any employment or consulting contract (other than in the ordinary course consistent with past practices or renewalsas contemplated by this Agreement) or other agreement with any director, extensions officer or replacements therefor employee or adopt, amend in any material respect or terminate any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit‑sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or Employee Benefit Plan or agreement maintained by it for the benefit of its directors, employees or former employees, in each case except in the ordinary course of business and consistent with past practices, as contemplated by this Agreement and as may be required by Legal Requirements;
(N) settle any Proceeding involving the payment by it of monetary damages or imposing a material restriction on the operations of CFG, Investar or any of their respective Subsidiaries;
(O) mortgage, pledge or subject to Lien any of its property, business or assets, corporeal or incorporeal, except (i) statutory liens not yet delinquent, (ii) landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not increase materially impair the aggregate amount available thereunder use thereof for the purpose for which they are held, and that do not provide for any termination fees or penalties(iv) pledges of assets to secure public funds deposits;
(P) sell, prohibit pre-payments or provide for any pre-payment penaltiestransfer, or contain any like provisions limiting lease to others or otherwise affecting the ability dispose of such Party any of its material assets (except any sales or its applicable Subsidiaries leases of property acquired by Cheaha Bank by foreclosure or successors from terminating or pre-paying such facilities, or contain financial terms less favorableotherwise, in the aggregateeach instance, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practicepractices) or cancel or compromise any debt or claim, or for borrowings waive or other lines release any right or claim of credit a value in excess of $25,000;
(Q) make any capital expenditures or refinancing capital additions or betterments in excess of indebtedness outstanding on the date hereof in additional amounts not to exceed an aggregate of $5,000,00025,000;
(R) hire or employ any new employee with an annual salary exceeding $50,000, or Indebtedness owed by hire or employ any wholly owned Subsidiary to such Party Person for any newly created position;
(S) sell or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms dispose of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for divest itself of the obligations ownership, possession, custody or control, of any Person (other than corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of its wholly owned Subsidiaries)time after their use, creation or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result receipt, except at the end of ordinary advances and reimbursements to employeesthe normal retention period;
(gT) materially change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereofprinciple of accounting, except as may be required from time to time by changes in GAAP or regulatory accounting principles;
(hwithout regard to any early adoption date) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
Governmental Authority; (iU) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract sell (other than normal renewals of such Contracts without materially adverse changes, additions for payment at maturity) or deletions of terms);
(l) make or incur, or enter into purchase any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases securities other than in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(tV) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating make, commit to make, renew, extend the WARN Actmaturity of, or file any application with any Governmental Entity to do alter any of the foregoingmaterial terms of any Loan in excess of $1,000,000 without Investar’s consent, except for openingswhich consent Investar will be deemed to have given unless it objects to the Loan within three (3) Business Days of receiving a notice from CFG identifying the proposed borrower, closingsthe loan amount, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicablematerial Loan terms;
(uW) except as required renew, extend the maturity of, or alter any of the material terms of any Loan which has been classified as, or, in the exercise of reasonable diligence by applicable Law, convene any regular or special meeting (Cheaha Bank or any adjournment thereofGovernmental Authority with supervisory jurisdiction over Cheaha Bank, should have been classified as “substandard,” “doubtful,” “loss,” “other loans especially mentioned,” “other assets especially mentioned,” “watch,” “pass/watch” or any comparable classifications by such Persons, in excess of $250,000;
(X) make or commit to make a loan to any borrower with an outstanding loan agreement, note or borrowing arrangement with Cheaha Bank which has been classified as or, in the exercise of the stockholders of SuperMedia reasonable diligence by Cheaha or Dexany Governmental Authority with supervisory jurisdiction over Cheaha Bank, should have been classified as applicable, “substandard,” “doubtful,” “loss,” “other than the SuperMedia Stockholder Meeting loans especially mentioned,” “other assets especially mentioned,” “watch,” “pass/watch” or the Dex Stockholder Meeting, or any comparable classifications by such Persons;
(Y) enter into any Contractacquisitions or leases of real property, understanding including new leases and lease extensions, excluding the acquisition of property acquired by Cheaha Bank by foreclosure or arrangement otherwise; or
(Z) foreclose upon or otherwise acquire any commercial real property prior to receipt and approval by Investar of a Phase I environmental review thereof;
(AA) excluding deposits and certificates of deposit, incur or modify any indebtedness for borrowed money, including Federal Home Loan Bank advances;
(BB) prepay any indebtedness or other similar arrangements resulting in any prepayment penalty thereunder;
(CC) issue a replacement of any certificate representing its securities except upon (i) written notice to Investar, (ii) presentation of a properly executed lost certificate affidavit in form reasonably satisfactory to Investar and (iii) if required by Investar, the delivery of an indemnity or surety bond in the amount of the consideration payable with respect to the voting shares of capital stock of SuperMedia or DexCFG Common Stock represented therein;
(vDD) take or fail to take any action that is intended which would adversely affect or is reasonably likely to result delay in any material respects the ability of Cheaha Bank or Investar to obtain any approvals from any regulatory agencies or other approvals required for consummation of the conditions Contemplated Transactions or to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of perform its obligations and agreements under this Agreement; or
(wEE) enter into any contract, with respect to, or otherwise agree or commit or agree to take do, any of the actions contemplated by Sections 5.2(a) to (v) aboveforegoing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Investar Holding Corp)
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this Agreement to the Dex Effective Time, except as set forth in Section 5.2 earlier of the SuperMedia Disclosure Schedule Effective Time or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by termination of this Agreement, neither SuperMedia nor Dex shallthe Company shall not, and neither SuperMedia nor Dex shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of its Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, which Sterling (and the Company shall not be unreasonably withheld, delayed or conditioned:provide Sterling with prompt notice of any events referred to in this Section 7.02 occurring after the date hereof):
(a) (i) other than dividends and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities or any of its Subsidiaries, or any rights, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or incur any indebtedness for borrowed money (ii) any SuperMedia IP owned by SuperMedia or other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of the SuperMedia Subsidiaries Company or any Dex IP owned by Dex of its Subsidiaries to the Company or the Dex any of its Subsidiaries, as applicable, except for non-exclusive licenses ; it being understood and agreed that incurrence of Intellectual Property made indebtedness in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewalsshall include, extensions or replacements therefor that do not increase without limitation, the aggregate amount available thereunder creation of deposit liabilities, purchases of federal funds, and that do not provide for any termination fees or penaltiessales of certificates of deposit), prohibit pre-payments or provide for any pre-payment penaltiesassume, or contain any like provisions limiting guarantee, endorse or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise an accommodation become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries)Person, or make any loans loan or advances to any Person advance other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the date hereof;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any of its Subsidiaries;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past prudent banking practices;
(tb) open adjust, split, combine or reclassify any material new offices capital stock; make, declare or facilities pay any dividend or relocate or close make any material existing offices or facilities or implement any layoffs implicating the WARN Actother distribution on, or file directly or indirectly redeem, purchase or otherwise acquire, any application with shares of its capital stock or any Governmental Entity securities or obligations convertible into or exchangeable for any shares of its capital stock, grant any stock options or stock awards, or grant any Person any right to do acquire any shares of its capital stock; or issue any additional shares of capital stock (except upon exercise and conversion of Company Options, as provided in Section 3.03 and Section 8.06), or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of the foregoingits properties or assets to any Person, or cancel, release or assign any indebtedness to such Person or any claims held by any such Person, except for openings, closings, relocations in the ordinary course of business consistent with past practice and layoffs prudent banking practices or pursuant to contracts or agreements in progress on force at the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicableAgreement;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. Without limiting the generality of Section 5.1 above, during During the period from the date of this ------------ Agreement to the Dex Effective Time, except as set forth in Section 5.2 of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable, as required by applicable Law, or as (i) expressly contemplated or permitted by this AgreementAgreement or (ii) required by applicable law or any Regulatory Agency, neither SuperMedia nor Dex shall, and neither SuperMedia nor Dex NatWest Plc shall not permit any SuperMedia Subsidiary or Dex Subsidiary, as applicable, of the Included Subsidiaries to, without the prior written consent of Dex or SuperMedia, as applicable, which shall not be unreasonably withheld, delayed or conditionedFFG:
(a) incur any indebtedness for borrowed money (i) other than dividends short-term indebtedness incurred to refinance short-term indebtedness and distributions by a direct or indirect Subsidiary to such Party or to any direct or indirect wholly owned Subsidiary indebtedness of such Party, declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or any other of its securities, (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities NatWest Plc or any of its Affiliates to any of the Included Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any rightsloan or advance, warrants or options to acquire any such shares or other securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the date hereof in accordance with their present terms and such Party’s practices as of the date hereof);
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities, including any restricted shares of its common stock, or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);
(c) amend its certificate of incorporation, bylaws or other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or any equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for acquisitions of inventory or other similar assets in the ordinary course of business consistent with past practice; provided, that the foregoing shall not prohibit internal reorganizations or consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or otherwise dispose of (i) any of its properties or assets (including capital stock in any of its Subsidiaries) or create any security interest in such assets or properties other than in the ordinary course of business consistent with past practice, or practice (iiit being understood and agreed that (i) any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses incurrence of Intellectual Property made indebtedness in the ordinary course of business consistent with past practice;
shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements and (fii) except for borrowings under existing credit facilities (or renewalsany such indebtedness must have a final maturity date of no later than June 30, extensions or replacements therefor that do 1996; provided that, if the Closing -------- shall not increase have occurred prior to April 30, 1996, any such indebtedness incurred thereafter must have a final maturity date of no later than 60 days from the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability date of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the date hereof in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice or policy, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such investment, loan or acquisition;
(j) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the date hereof, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of termsincurrence);
(lb) adjust, split, combine or reclassify any capital stock or make, declare or pay any dividend or make any other distribution (other than in connection with or incurrelating to the Dividend Excluded Transactions) on, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the date hereof;
(m) except as required by agreements or instruments in effect on the date hereof, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds redeem, purchase or otherwise acquire, any equity shares of its capital stock or ownership interest on the date hereof;
(n) except as required by the terms any securities or obligations convertible into or exchangeable for any shares of SuperMedia Benefit Plans or SuperMedia Employment Agreementsits capital stock, or the terms of Dex Benefit Plans grant any stock appreciation rights or Dex Employment Agreementsgrant any individual, as applicable, as in effect on the date hereof or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust corporation or other funding vehicle, (vi) accelerate the payment or vesting of entity any payment or benefit provided or right to be provided to acquire any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the date hereof), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the date hereof) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such payment, discharge, settlement or compromise (i) in the ordinary course of business consistent with past practice that involves solely money damages in an amount not in excess of $1,000,000 individually or $2,000,000 in the aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) pursuant to the terms of any Contract in effect on the date hereof (copies of which have been provided to the Other Party prior to the date hereof);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such Intellectual Property, let lapse, fail to maintain, abandon or cancel any applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such Party or any shares of its Subsidiariescapital stock;
(s) fail to maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, assets and business in a form and amount consistent with past practices;
(t) open any material new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or file any application with any Governmental Entity to do any of the foregoing, except for openings, closings, relocations and layoffs in progress on the date of this Agreement or planned on the date hereof and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, other than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions contemplated by Sections 5.2(a) to (v) above.
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