This excerpt taken from the GMCR 8-K filed Jun 20, 2006.
EFFECTIVE TIME OF THE MERGER
4.1 Conduct of Business by the Company.
(a) Ordinary Course. During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall, except as otherwise expressly contemplated by this Agreement or to the extent that Parent shall otherwise consent in writing (i) carry on its business only in the ordinary course, (ii) pay its debts and Taxes when due, and pay or perform other material obligations when due, (iii) use reasonable efforts to preserve substantially intact its present business organization and assets, taken as a whole, (iv) use reasonable efforts to keep available the services of the current officers, employees and consultants of the Company and (v) use reasonable efforts to manage in the ordinary course its business relationships with customers, suppliers and other Persons with which the Company has significant business relations.
(b) Required Consent. Without limiting the generality of Section 4.1(a), except as permitted or contemplated by the terms of this Agreement, and except as provided in Section 4.1(b) of the Company Disclosure Schedule, without the prior written consent of Parent, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall not, directly or indirectly, do any of the following:
(i) Amend the Company Organizational Documents;
(ii) Adopt a plan of complete or partial liquidation or dissolution;
(iii) Declare, accrue, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any Company Stock (other than dividend accruals in respect of the Series B Preferred Stock and
Series C Preferred Stock), or split, combine or reclassify any Company Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Company Stock (other than distributions of cash of the Company (as defined by GAAP));
(iv) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of Company Stock;
(v) Issue, sell, pledge, dispose of or otherwise subject to any encumbrance any shares of capital stock of the Company, or any securities convertible into shares of capital stock of the Company, or subscriptions, rights, warrants or options to acquire any shares of capital stock of the Company or any securities convertible into shares of capital stock of the Company, or any other ownership interest in the Company, or enter into other agreements or commitments of any character obligating it to issue any such securities or rights, other than issuances of Company Common Stock upon the exercise of Company Options or Company Warrants or upon the conversion of shares of Company Preferred Stock;
(vi) Acquire any corporation, partnership, limited liability company, other business organization or division thereof or any material amount of assets thereof, or any material equity or voting interest in or a material portion of the assets of any business or any Person or division thereof, or enter into any joint venture, strategic alliance or similar contract or arrangement;
(vii) Sell, lease, license or otherwise dispose of any properties or assets of the Company except (A) properties or assets which are not, individually or in the aggregate, material to the business of Company or (B) the sale, licensing and distribution of Company products, technology and services in the ordinary course of business consistent with past practice;
(viii) Make any loans, advances or capital contributions to, or investments in, any other Person (excluding the Companys guarantee of the corporate American Express credit cards provided to certain Company employees), other than employee advances for travel and entertainment expenses made in the ordinary course of business consistent with past practice and trade accounts receivable;
(ix) Except as required by GAAP as concurred with by its independent auditors, make any material change in its methods, principles or practices of accounting;
(x) Make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a Tax refund, or consent to the extension or waiver of the limitations period applicable to any Tax claim or assessment;
(xi) Write down any of its assets, including any write down of the value of inventory or accounts receivable, other than in the ordinary course of business;
(xii) Commence or enter into any settlement of any Legal Proceeding other than settlements involving only the payment of money in an amount not in excess of $100,000 individually for any one settlement or $250,000 in the aggregate for all such settlements, other than in connection with this Agreement and the transactions contemplated hereby;
(xiii) Except as required by Legal Requirements, Employee Plans, Contracts currently binding on the Company or policies of the Company currently in effect which are, in the case of such Contracts and policies, set forth in Section 2.12(a) of the Company Disclosure Schedule, and except as contemplated by this Agreement, (A) increase in any manner the amount of compensation or fringe benefits of, pay any bonus to or grant severance or termination pay to any Employee of the Company, (B) make any increase in or commitment to increase any benefits provided under any Employee Plan (including any severance plan), adopt or amend or make any commitment to establish, terminate, adopt or amend any Employee Plan or make any contribution, other than regularly scheduled contributions made to an Employee Plan in effect on the date hereof, (C) enter into, amend or terminate any employment, severance, termination or indemnification agreement (other than at-will offer letters, and employment agreements in any jurisdiction outside the United States on substantially the same terms as the Companys existing employment agreements in such jurisdiction) or enter into any collective bargaining agreement, or (D) enter into any agreement with any Employee the benefits of which are (in whole or in part) contingent or the terms of which are altered upon the occurrence of a transaction involving the Company of the nature contemplated hereby; provided, that (x) nothing herein shall be construed as prohibiting the Company from taking actions that are described in Section 4.1(b)(v) hereof and (y) nothing herein shall prohibit the Company from entering into severance agreements and granting severance or termination pay to any Employee in the ordinary course of business in connection with the termination of such Employees employment in reasonable amounts as the Company deems advisable, in its good faith judgment, to avoid a material risk of litigation, not to exceed $150,000 in the aggregate or $50,000 to any single Employee;
(xiv) Forgive or cancel any debts or claims other than in the ordinary course of business, or waive, cancel, terminate or allow to lapse any material Intellectual Property rights or other rights material to the Companys business;
(xv) Enter into or renew any Contracts containing, or otherwise subject the Surviving Corporation or Parent to, any non-competition or exclusivity restrictions on the Company or the Surviving Corporation or Parent, or any of their respective businesses, following the Closing;
(xvi) Take any action that would or is reasonably likely to result in any of the conditions to the Merger set forth in Article VI not being satisfied, that would impair the ability of the Company to consummate the Merger in accordance with the terms hereof or materially delay such consummation;
(xvii) Hire (A) any non-senior management level employees other than in the ordinary course of business consistent with past practice or (B) any senior management level employees;
(xviii) Incur any Company Indebtedness other than Company Indebtedness under the Companys Loan and Security Agreement dated August 18, 2005 with Silicon Valley Bank in order to fund working capital needs in the ordinary course of business (Permitted Indebtedness);
(xix) Mortgage, pledge or subject to any Lien, any properties or assets, except in connection with Permitted Indebtedness and except for inchoate liens for Taxes not yet due and payable;
(xx) Make or commit to make capital expenditures in excess of $250,000 in the aggregate in any consecutive 12 month period;
(xxi) Enter into any Contract requiring the Company to pay in excess of $150,000 in the aggregate in any one month period, except in the ordinary course of business; or
(xxii) Agree to take any of the actions described in (i) through (xxi) above.