Additional Covenants of Buyer. From the date of this Agreement until the Effective Time, unless Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as expressly set forth in Section 5.19 of the Buyer Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Buyer shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, employees, suppliers and others having business dealings with it, and maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section (a) amend or modify the Organizational Documents of Buyer; (b) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the Buyer Ordinary Shares or other Equity Interests of Buyer, other than the annual dividends payable by Buyer in respect of the Buyer Ordinary Shares, in an amount per share not to exceed its most recent annual per share dividend (but subject to any increase in the ordinary course of business in an amount required by applicable Law) and with the timing of such dividend to be consistent with past practice, or (ii) split, combine or reclassify, or issue, deliver, sell, grant, dispose of or subject to a Lien any Buyer Ordinary Shares or Equity Interests of Buyer or (iii) repurchase, redeem or otherwise acquire any Buyer Ordinary Shares or other Equity Interests of Buyer, other than acquisitions of Equity Interests of Buyer pursuant to any Buyer Benefit Plan as in effect on the date of this Agreement; (c) acquire by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person (other than a wholly owned Subsidiary of Buyer), except for acquisitions that (x) are entered into on an arm’s length basis, (y) the expected gross expenditures and commitments (including the amount of any indebtedness assumed) of which do not exceed, in the aggregate €145 million and (z) which are not reasonably likely, individually or in the aggregate, to prevent or materially delay the satisfaction of the conditions set forth in ARTICLE VI; (d) sell, lease, license, subject to a Lien, encumber or otherwise surrender, relinquish or dispose of any material assets, property or rights, other than (i) sales of inventory in the ordinary course of business consistent with past practice, (ii) sales of assets, property or rights that generated, in the aggregate, net revenues not to exceed €45 million in 2015, or (iii) any transaction or series of transactions that would result in the sale of assets, property or rights that are primarily used or held for use in any business of Buyer and that had generated, in the aggregate, net revenue not to exceed €45 million during the 2015 fiscal year, or (iv) transactions among Buyer and wholly owned Subsidiaries of Buyer; (e) (i) make any loans, advances or capital contributions to, or investments in, any other Person other than (A) by Buyer or any wholly owned Subsidiary of Buyer to or in Buyer or any wholly owned Subsidiary of Buyer or (B) to employees for advancement of travel and related business expenses in the ordinary course of business consistent with past practice or
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Sources: Stock and Asset Purchase Agreement
Additional Covenants of Buyer. From the date of this Agreement until the Effective Time, unless Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as expressly set forth in Section 5.19 of the Buyer Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Buyer shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, employees, suppliers and others having business dealings with it, and maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in SectionSection 5.19 of the Buyer Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date hereof until the Effective Time, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
(a) amend or modify the Organizational Documents of Buyer;
(b) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the Buyer Ordinary Shares or other Equity Interests of Buyer, other than the annual dividends payable by Buyer in respect of the Buyer Ordinary Shares, in an amount per share not to exceed its most recent annual per share dividend (but subject to any increase in the ordinary course of business in an amount required by applicable Law) and with the timing of such dividend to be consistent with past practice, or (ii) split, combine or reclassify, or issue, deliver, sell, grant, dispose of or subject to a Lien any Buyer Ordinary Shares or Equity Interests of Buyer or (iii) repurchase, redeem or otherwise acquire any Buyer Ordinary Shares or other Equity Interests of Buyer, other than acquisitions of Equity Interests of Buyer pursuant to any Buyer Benefit Plan as in effect on the date of this Agreement;
(c) acquire by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person (other than a wholly owned Subsidiary of Buyer), except for acquisitions that (x) are entered into on an arm’s length basis, (y) the expected gross expenditures and commitments (including the amount of any indebtedness assumed) of which do not exceed, in the aggregate €145 million and (z) which are not reasonably likely, individually or in the aggregate, to prevent or materially delay the satisfaction of the conditions set forth in ARTICLE VI;
(d) sell, lease, license, subject to a Lien, encumber or otherwise surrender, relinquish or dispose of any material assets, property or rights, other than (i) sales of inventory in the ordinary course of business consistent with past practice, (ii) sales of assets, property or rights that generated, in the aggregate, net revenues not to exceed €45 million in 2015, or (iii) any transaction or series of transactions that would result in the sale of assets, property or rights that are primarily used or held for use in any business of Buyer and that had generated, in the aggregate, net revenue not to exceed €45 million during the 2015 fiscal year, or (iv) transactions among Buyer and wholly owned Subsidiaries of Buyer;
(e) (i) make any loans, advances or capital contributions to, or investments in, any other Person other than (A) by Buyer or any wholly owned Subsidiary of Buyer to or in Buyer or any wholly owned Subsidiary of Buyer or (B) to employees for advancement of travel and related business expenses in the ordinary course of business consistent with past practice or (ii) create, incur, guarantee or assume any indebtedness, issuances of debt securities, guarantees, loans or advances that would result in the net indebtedness of Buyer and its Subsidiaries exceeding €400 million in the aggregate, excluding guarantees by Buyer or wholly owned Subsidiaries of Buyer of indebtedness of wholly owned Subsidiaries of Buyer or guarantees by Subsidiaries of Buyer of indebtedness of Buyer and guarantees by Buyer or its Subsidiaries entered into in the ordinary course of business;
(f) other than (i) as set forth in (x) Buyer’s current capital budget (a copy of which was made available to Seller prior to the date hereof) or (y) any subsequent annual capital budget that is prepared by Buyer in the ordinary course of business consistent with past practice and approved by the Buyer Board or (ii) in connection with the repair or replacement of the plant and equipment at the operating facilities of Buyer or any of its Subsidiaries in the ordinary course of business, make any capital expenditure in excess of €35 million in the aggregate;
(g) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Buyer;
(h) enter into any agreement to acquire another business or effect any transaction that is reasonably likely to result in the failure to satisfy the conditions set forth in Section 6.01(b) or Section 6.01(c); or
(i) authorize, resolve, agree or commit to do any of the foregoing.
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