Conduct in the Ordinary Course. Except for Liabilities incurred in connection with, and actions taken in compliance with, this Agreement, since the date of the most recent financial statements included in the “Filed Company SEC Documents” (as defined in the Merger Agreement), the Business has been conducted only in the ordinary course consistent with past practice, and there has not been any Material Adverse Effect, and from such date until the date hereof there has not been: (a) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of any Transferred Subsidiary, other than dividends or distributions by a Transferred Subsidiary to Guidant or a Share Seller, (b) any purchase, redemption or other acquisition by a Transferred Subsidiary of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant or any of its Affiliates to any current or former (A) director of a Transferred Subsidiary or (B) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described in the foregoing clauses (A) and (B) of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practice or as was required under any (y) employment, deferred compensation, consulting, severance, change of control, termination or indemnification contract with any Key Personnel or (z) contract with any Key Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts in the foregoing clauses (y) and (z) of this clause (d)(i), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (ii) any granting by Guidant or any of its Affiliates to any Key Personnel of (A) any increase in severance or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received in the ordinary course of business consistent with past practice or as was required under any Guidant Benefit Agreement or Guidant Benefit Plan, (iii) any entry by Guidant or any of its Affiliates into, or any amendments of, any Guidant Benefit Agreement, (iv) the removal or modification of any restrictions in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as of the date hereof or (v) the adoption, amendment or termination of any Guidant Benefit Plan, other than, in the cases of clauses (i), (ii), (iii) and (iv), such increases, amendments, new agreements, removals, modifications or terminations with respect to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, (e) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liability.
Appears in 2 contracts
Sources: Purchase Agreement (Boston Scientific Corp), Purchase Agreement (Abbott Laboratories)
Conduct in the Ordinary Course. Except for Liabilities incurred Since June 30, 2004 and except as contemplated by this Agreement or as disclosed in connection with, and actions taken in compliance with, this Agreement, since the date Section 3.11 of the most recent financial statements included in the “Filed Company SEC Documents” (as defined in the Merger Agreement)Disclosure Schedule, the Business business of the Company and each Subsidiary has been conducted only in the ordinary course and consistent with past practice. As amplification and not limitation of the foregoing, since June 30, 2004, except as contemplated by this Agreement or disclosed in Section 3.11 of the Disclosure Schedule, neither the Company nor any Subsidiary has:
(i) permitted or allowed any of the assets or properties (whether tangible or intangible) of the Company or any Subsidiary to be subjected to any Encumbrance, other than Permitted Encumbrances and Encumbrances that will be released at or prior to the Closing;
(ii) except in the ordinary course of the Company’s business consistent with past practice, and there has not been any Material Adverse Effect, and from such date until discharged or otherwise obtained the date hereof there has not been: (a) any declaration, setting aside or payment release of any dividend Encumbrance or paid or otherwise discharged any Liability, other distribution than current liabilities reflected on the Reference Balance Sheet and current liabilities incurred in the ordinary course of the business of the Company or its Subsidiaries;
(iii) made any loan to, guaranteed any Indebtedness of or otherwise incurred any Indebtedness on behalf of any Person greater than $10,000 individually or $25,000 in the aggregate;
(iv) failed to pay any creditor any amount owed in excess of $10,000 individually, or $25,000 in the aggregate, when due;
(v) redeemed any of the capital stock or declared, made or paid any dividends or distributions (whether in cash, stock securities or other property) with respect to any the holders of capital stock of the Company or any Transferred Subsidiary, other than dividends dividends, distributions and redemptions declared, made or distributions paid by any Subsidiary solely to the Company;
(vi) made any material changes in the Company’s methods of selling and pricing existing products and services of the Company;
(vii) merged with, entered into a Transferred Subsidiary to Guidant consolidation with or acquired an interest of 5% or more in any Person or acquired a Share Seller, (b) any purchase, redemption substantial portion of the assets or other acquisition by a Transferred Subsidiary business of any shares of capital stock Person or any division or line of business thereof, or otherwise acquired any material assets other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant or any of its Affiliates to any current or former (A) director of a Transferred Subsidiary or (B) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described in the foregoing clauses (A) and (B) of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) than in the ordinary course of the Company’s business consistent with past practice practice;
(viii) made any capital expenditure or as was required under commitment for any (y) employment, deferred compensation, consulting, severance, change capital expenditure in excess of control, termination $25,000 individually or indemnification contract with any Key Personnel or (z) contract with any Key Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts $100,000 in the foregoing clauses aggregate;
(yix) sold, transferred, leased, subleased, licensed or otherwise disposed of any material properties or assets, real, personal or mixed (including, without limitation, leasehold interests and (z) of this clause (d)(iintangible assets), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (ii) any granting by Guidant or any other than the sale of its Affiliates to any Key Personnel of (A) any increase in severance or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received the Company’s products and services in the ordinary course of the Company’s business consistent with past practice practice;
(x) issued or as was required under sold any Guidant Benefit Agreement capital stock, notes, bonds or Guidant Benefit Planother securities, or any option, warrant or other right to acquire the same, of, or any other interest in, the Company or any Subsidiary, other than the issuance of the Series A Option;
(iiixi) other than in the ordinary course of the Company’s business, consistent with past practice, entered into any entry by Guidant agreement, arrangement or transaction with any of its Affiliates intodirectors, officers, employees or shareholders;
(A) granted any increase, or announced any amendments ofincrease or made any alteration to the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company or any Subsidiary to any of its employees, including, without limitation, any Guidant Benefit Agreementincrease or change pursuant to any Plan, or (ivB) the removal established or modification increased or promised to increase any benefits under any Plan, in either case of any restrictions in any Guidant Benefit Agreement (A) or Guidant Benefit Plan or awards made thereunder, (B) except as required to comply with applicable by Law or any Guidant Benefit Agreement collective bargaining agreement or Guidant Benefit Plan in effect as involving ordinary increases consistent with the past practices of the date hereof Company or such Subsidiary;
(vxiii) written down or written up the adoptionvalue of any receivables or revalued any assets of the Company or any Subsidiary other than in the ordinary course of the Company’s business;
(xiv) amended, amendment terminated, canceled or compromised any material claims of the Company or any Subsidiary or waived any other rights of substantial value to the Company or any Subsidiary;
(xv) made any material change in any method of accounting or accounting practice or policy used by the Company or any Subsidiary, other than such changes required by Australian GAAP or disclosed in Section 3.11 of the Disclosure Schedule;
(xvi) allowed any Permit or Environmental Permit, in each case reasonably necessary to conduct the Company’s business as currently conducted, to lapse or terminate or failed to renew any such Permit or Environmental Permit or any material insurance policy that is scheduled to terminate or expire within 45 calendar days of the Closing Date;
(xvii) incurred any Indebtedness, in excess of $25,000 individually or $50,000 in the aggregate;
(xviii) materially amended, modified or consented to the termination of any Guidant Benefit PlanMaterial Contract or the Company’s or any Subsidiary’s rights thereunder;
(xix) amended or restated the charter or the bylaws (or other organizational documents) of the Company or any Subsidiary;
(xx) except as contemplated hereby, terminated, discontinued, closed or disposed of any plant, facility or other thanbusiness operation, or laid off or made redundant any employees or implemented any early retirement, separation or program providing early retirement, redundancy or window benefits within the meaning of Section 1.401(a)-4 of the Regulations or announced or planned any such action or program for the future, outside the ordinary course of business;
(xxi) made any material election or settled or compromised any material liability, in the cases of clauses (i), (ii), (iii) and (iv), such increases, amendments, new agreements, removals, modifications or terminations each case with respect to Tier II Employees that Taxes of the Company or any Subsidiary;
(1xxii) do not provide for suffered any increase in compensation casualty loss or benefits for damage with respect to any individual Tier II Employee that is material in relation to such Tier II Employeeof the Company’s compensation or benefits prior to such increase and (2) assets which in the aggregate do not result in any material increase in compensation, benefits or other similar expenses have a replacement cost of the Business, (e) any damage, destruction or lossmore than $25,000, whether or not such loss or damage shall have been covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a ;
(xxiii) suffered any Material Adverse Effect; or
(xxiv) agreed, (f) whether in writing or otherwise, to take any change in accounting methods, principles or practices of the Business materially affecting its assetsactions specified in this Section 3.11 or granted any options to purchase, liabilities rights of first refusal, rights of first offer or businessesany other similar rights or commitments with respect to any of the actions specified in this Section 3.11, except insofar as may have been required expressly contemplated by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liabilitythis Agreement.
Appears in 1 contract
Conduct in the Ordinary Course. Except for Liabilities incurred in connection with, and actions taken in compliance with, this Agreement, since Since the date of the most recent financial statements included in Interim Balance Sheet to the “Filed Company SEC Documents” (as defined in date of this Agreement, there has not occurred any Material Adverse Effect. From the Merger date of the Interim Balance Sheet to the date of this Agreement), the Business NPC has been conducted only its business in the ordinary course consistent with past practice, practice and there has not been neither NPC nor any Material Adverse Effect, and from such date until the date hereof there has not been: of its Subsidiaries has:
(a) permitted or allowed any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect their respective assets to be subjected to any capital stock of any Transferred SubsidiaryEncumbrance, other than dividends or distributions by a Transferred Subsidiary to Guidant or a Share Seller, Permitted Encumbrances;
(b) any purchaseexcept in the ordinary course of business, redemption discharged or other acquisition by a Transferred Subsidiary otherwise obtained the release of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights Encumbrance related to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant NPC or any of its Affiliates Subsidiaries or paid or otherwise discharged any Liability related to NPC or any of its Subsidiaries, other than (i) current Liabilities reflected on the Interim Balance Sheet and current Liabilities incurred in the ordinary course of business since the date of the Interim Balance Sheet and (ii) the Specified Matter;
(c) made any change to its method of accounting or accounting practice or policy, other than such changes required by GAAP;
(d) amended its limited liability company agreement, charter, bylaws or similar organization documents;
(e) issued or sold any equity interests, capital stock or other equity securities, or any option, warrant or other right to acquire the same, of NPC or any of its Subsidiaries;
(f) except as permitted by Section 2.11, declared, set aside or paid any distribution, or made any other distribution in respect of the Membership Interests, or any direct or indirect redemption, purchase or other acquisition of any equity interests of NPC or any of its Subsidiaries;
(g) made any material change outside of the ordinary course of business in its customary methods of operations, including practices and policies relating to manufacturing, purchasing, inventories and the delivery of goods;
(h) except in the ordinary course of business and consistent with past practice, entered into, terminated or amended any material NPC IP Agreement, or sold, transferred, assigned, licensed, abandoned, waived or otherwise disposed of any portion of material NPC Owned Intellectual Property;
(i) made any capital expenditure or commitment for any capital expenditure, individually or in the aggregate for any particular restaurant, in excess of $500,000;
(j) materially increased the rate of compensation, commission, bonus or other direct or indirect remuneration payable to any current officer, director (including any member of the board of directors or former (Asimilar governing body) and any employee having the title of director of a Transferred Subsidiary division or operational unit, regional manager, vice president or senior vice president of NPC or any of its Subsidiaries;
(Bk) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described incurred any Indebtedness, other than in the foregoing clauses ordinary course of business or from any drawdown of NPC’s outstanding line of credit, in excess of $1,000,000 in the aggregate or any investments in any Person (A) and (B) other than immaterial advances to NPC’s or any of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) its Subsidiaries’ employees in the ordinary course of business consistent with past practice or as was required under practice);
(l) caused any (y) employment, deferred compensation, consulting, severance, change of control, termination or indemnification contract with removal of any Key Personnel or (z) contract with any Key Personnel the benefits officer of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts in the foregoing clauses (y) and (z) of this clause (d)(i), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (ii) any granting by Guidant NPC or any of its Affiliates Subsidiaries or agreed to any Key Personnel of (A) any increase in severance or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received material change in the ordinary course terms and conditions of business consistent with past practice the employment of any officer, director (including any member of the board of directors (or as was required under similar governing body) and any Guidant Benefit Agreement employee having the title of director of a division or Guidant Benefit Planoperational unit, (iii) any entry by Guidant regional manager, vice president or senior vice president of NPC or any of its Affiliates into, or Subsidiaries other than for cause;
(m) entered into to any amendments of, any Guidant Benefit Agreement, (iv) the removal or modification of any restrictions in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as of the date hereof or (v) the adoption, amendment or termination of any Guidant Benefit PlanMaterial Contract, except as otherwise contemplated by this Agreement;
(n) other thanthan pursuant to a Pizza Hut Franchise Agreement, entered into any material agreement or material arrangement prohibiting or restricting NPC or any of its Subsidiaries from freely engaging in any business or otherwise restricting the conduct of its business anywhere in the cases of clauses world; or
(i)o) entered into any agreement or understanding, (ii)whether in writing or otherwise, (iii) and (iv), such increases, amendments, new agreements, removals, modifications for NPC or terminations with respect to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, (e) Subsidiaries to take any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change actions specified in GAAP or paragraphs (ga) any material Tax election or any settlement or compromise of any material income Tax liabilitythrough (n) above.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NPC Operating Co B, Inc.)
Conduct in the Ordinary Course. Except for Liabilities incurred (x) as set forth in connection with, and actions taken in compliance with, Section 3.08 of the Disclosure Schedule or (y) as otherwise expressly contemplated by this Agreement, the Transition Services Agreement or the Note Purchase Documents, since the Reference Statement Date through the date of this Agreement, each of the most recent financial statements included in the “Filed Company SEC Documents” (as defined in the Merger Agreement), the Business Companies has been conducted only in the ordinary course consistent with past practice, and there has not been any Material Adverse Effect, and from such date until the date hereof there has not been: (a) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any capital stock of any Transferred Subsidiary, other than dividends or distributions by a Transferred Subsidiary to Guidant or a Share Seller, (b) any purchase, redemption or other acquisition by a Transferred Subsidiary of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant or any of operated its Affiliates to any current or former (A) director of a Transferred Subsidiary or (B) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described in the foregoing clauses (A) and (B) of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) businesses in the ordinary course of business consistent with past practice in all material respects and has not:
(a) (i) issued, sold or as was required under redeemed any capital stock or other ownership interests, notes, bonds or other securities of any of the Companies (y) employmentor any option, deferred compensation, consulting, severance, change of control, termination warrant or indemnification contract with any Key Personnel or (z) contract with any Key Personnel other right to acquire the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts in the foregoing clauses (y) and (z) of this clause (d)(i), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12same), (ii) declared, made or paid any granting dividends or distributions (including repayments of paid in share capital) to the holders of capital stock or other equity securities of any of the Companies other than cash dividends, distributions and redemptions declared, made or paid by Guidant any Company solely to another Company or by Porex to the Seller or an Affiliate of the Seller and other than dividends permissible under applicable Law or distributions paid solely in cash, or (iii) split, combined or reclassified any capital stock of any of the Companies;
(b) amended or restated its respective certificate of incorporation, articles of association or bylaws (or similar organizational documents, as applicable);
(c) granted or announced any increase in, or acceleration of payment or vesting of, the salaries, bonuses, or, on an aggregate basis, other benefits payable by such Company to any of its Affiliates employees, other than (i) as required by applicable Law, (ii) pursuant to any Key Personnel plans, programs or agreements (including bonus programs) as in effect on the date of (A) any increase in severance or termination pay this Agreement, or (Biii) any right to receive any severance or termination pay except for severance or termination pay received other increases in the ordinary course of business consistent with past practice (including increases due to promotions and normal periodic performance reviews and related compensation and benefit increases);
(d) except in the ordinary course of business, (i) incurred any Indebtedness for borrowed money (other than Indebtedness to a member of the Seller Group or as was required under another Company, trade credit and accounts payable), (ii) issued any Guidant Benefit Agreement debt securities, or Guidant Benefit Plan, (iii) assumed or guaranteed or otherwise become responsible for any entry by Guidant or any of its Affiliates into, or any amendments of, any Guidant Benefit Agreement, (iv) the removal or modification Indebtedness of any restrictions in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as Person (other than Indebtedness of the date hereof or (v) the adoption, amendment or termination of any Guidant Benefit Plan, other thananother Company), in the cases case of clauses (i), (ii), ) and (iii) and (iv)above, such increases, amendments, new agreements, removals, modifications or terminations with respect to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the an aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, amount exceeding $1,000,000;
(e) made any damageacquisition (by merger, destruction consolidation, or lossacquisition of stock or assets) of any Person or other business organization or division thereof, whether or not covered by insuranceentered into any written Contract to acquire (i) an equity interest in any legal entity, that individually or (ii) an interest in any joint venture, excluding any Contract for the provision of goods or services;
(f) except in the ordinary course of business, created any Encumbrances on any of its assets, tangible or intangible, other than Permitted Encumbrances and Encumbrances on assets having an aggregate has had value not in excess of $1,000,000;
(g) sold, assigned, leased or would reasonably be expected transferred any of its material tangible assets or Intellectual Property Rights except in the ordinary course of business;
(h) made any material change in any method of accounting or accounting practice or policy used by such Company, other than such changes required by GAAP or by applicable Law;
(i) adopted, entered into or effected a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any of the Companies (other than pursuant to have this Agreement);
(j) made or committed to make capital expenditures in excess of $500,000 in the aggregate;
(k) made or revoked any material Tax election, settled or compromised any material Tax claim or liability or enter into any closing agreement with any Governmental Authority in respect of a material amount of Taxes;
(l) accelerated the collection of or discounted any accounts receivable, delayed the payment of accounts payable, deferred expenses or other accrued liabilities, reduced inventories or otherwise increased cash on hand, except, in each such case, in the ordinary course of business;
(m) agreed to take any of the actions specified in Sections 3.08 (a)-(l), except as contemplated by this Agreement or the Transition Services Agreement; or
(n) suffered a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liability.
Appears in 1 contract
Sources: Stock Purchase Agreement (HLTH Corp)
Conduct in the Ordinary Course. Except for Liabilities incurred in connection with, and actions taken in compliance with, this Agreement, since Since the date of the most recent financial statements included in the “Filed Company SEC Documents” (as defined in the Merger Agreement)Balance Sheet Date, the Business has been conducted only in the ordinary course consistent with past practice, practice and there has not been occurred any Material Adverse Effect, and from such date until . From the Balance Sheet Date to the date hereof there of this Agreement, except as set forth in Section 3.08 of the Disclosure Schedule, none of Parent, the Company or any of its Subsidiaries, as applicable, has not been: taken any action with respect to the following matters relating to the Company or any of its Subsidiaries:
(a) any issuance, transfer or sale of any capital stock, notes, bonds or other securities of the Company or any of its Subsidiaries (or any option, warrant or other right to acquire the same), except in connection with (A) the exercise of any option, or settlement of any other equity-based incentive award issued under the Option Plan or (B) the issuance of any option or other equity-based incentive award authorized under the Option Plan, provided that such issuance shall not result in a breach of Section 3.02(e);
(b) any adjustment, split, subdivision, combination, reclassification or other amendment of any material term of any securities of the Company or any of its Subsidiaries (in each case, whether by merger, consolidation or otherwise);
(c) any amendment or restatement of the organizational documents of the Company or any of its Subsidiaries;
(d) entry into any proposed transaction or series of related transactions involving a change of control, merger, consolidation, share exchange, recapitalization, reorganization or other business combination, or liquidation, dissolution or winding up in each case, involving the Business, the Company or its Subsidiaries;
(e) any disposition (including the amendment or termination of any organization documents of, or contractual arrangements with, a VIE that prevents the consolidation of such VIE with the Company) that exceeds $30 million in any single transaction or series of related transactions or an amount that on an annualized basis, would exceed $100 million in the aggregate over a 12-month period (in each case, whether such amounts are the consideration received or the fair value of assets disposed or a VIE no longer consolidated with the Company);
(f) any payments (including repayments of any Indebtedness) to be made by any member of the Company Group to any member of the Parent Group that exceed $30 million in any single transaction or series of related transactions, or an amount that on an annualized basis, would exceed $100 million in the aggregate over a 12-month period;
(g) any incurrence of Indebtedness by any member of the Company Group to any member of the Parent Group that exceeds $30 million in any single transaction or series of related transactions, or an amount that on an annualized basis, would exceed $100 million in the aggregate over a 12-month period, provided that such incurrence shall not result in a breach of Section 3.02(e);
(h) any grant of any rights or licenses by any member of the Company Group to any member of the Parent Group with a value that exceeds $30 million in any single transaction or series of related transactions, or an amount that on an annualized basis, would exceed $100 million in the aggregate over a 12-month period (in each case, whether such amounts are the consideration received or the fair value of such rights or licenses);
(i) any allocation of material revenue or costs between any member of the Company Group, on the one hand, and any member of the Parent Group, on the other hand, except in accordance with the Allocation Rules, provided that such allocation shall not result in a breach of Section 3.02(e);
(j) any allocation of material assets, services or employees (including assets or services owned or provided by third parties) between any member of the Company Group, on the one hand, and any member of the Parent Group, on the other hand, except in accordance with the Allocation Rules, provided that such allocation shall not result in a breach of Section 3.02(e);
(k) any transaction or agreement between any senior executive officer of the Company or any Affiliate thereof or any member of the Parent Group, on the one hand, and any member of the Company Group, on the other hand, that involves any payment or exchange or transfer of value exceeding $1 million for any single transaction or agreement or series of related transactions or agreements, or an amount that on an annualized basis, would result in any payment, exchange or transfer of value in excess of $5 million in the aggregate over a 12-month period (in each case, whether such amounts are the payments to be made or the fair value of the subject matter of such transactions or agreements), other than for amounts in relation to compensation, equity-based incentive grants or similar remuneration to such senior executive officer under agreements that have been previously authorized by the compensation committee of the board of directors of Parent;
(l) any declaration, setting aside making or payment of any dividend or other distribution (whether in cash, stock securities or other property) or other than pursuant to the Option Plan, any buy back of securities or reduction of share capital;
(m) any establishment of, or amendment to, any equity-based incentive plan that would result (whether in any one transaction or together with respect to all other transactions) in the equity securities of the Company issuable upon the exercise, conversion or exchange of the options and other equity awards authorized under all equity-based incentive plans of the Company (including the Option Plan and other existing equity-based incentive plans of the Company), in the aggregate, exceeding 43,750,000 Ordinary Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like);
(n) any capital stock creation of any Transferred SubsidiaryEncumbrances in respect of any Indebtedness of an amount that on an annualized basis, other than dividends or distributions by would exceed $100 million in the aggregate over a Transferred Subsidiary to Guidant or a Share Seller, 12-month period;
(bo) any purchaseincurrence of Indebtedness of an amount that on an annualized basis, redemption would exceed $100 million in the aggregate over a 12-month period provided that such incurrence shall not result in a breach of Section 3.02(e);
(p) any entry into, or termination or amendment of any non-ordinary course exclusive license or other acquisition by contract that primarily relates to, or whose principal value is derived from, an exclusive license, or any sale or other transfer to a Transferred Subsidiary third party of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or material Intellectual Property owned by the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant Company or any of its Affiliates to any current or former Subsidiaries; or
(A) director of a Transferred Subsidiary or (B) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described in the foregoing clauses (A) and (B) of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practice or as was required under any (y) employment, deferred compensation, consulting, severance, change of control, termination or indemnification contract with any Key Personnel or (z) contract with any Key Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts in the foregoing clauses (y) and (z) of this clause (d)(i), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (iiq) any granting by Guidant or agreement to take any of its Affiliates to any Key Personnel of the actions specified in Sections 3.08(a) – (A) any increase in severance or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received in the ordinary course of business consistent with past practice or as was required under any Guidant Benefit Agreement or Guidant Benefit Plan, (iii) any entry by Guidant or any of its Affiliates into, or any amendments of, any Guidant Benefit Agreement, (iv) the removal or modification of any restrictions in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as of the date hereof or (v) the adoption, amendment or termination of any Guidant Benefit Plan, other than, in the cases of clauses (ip), (ii), (iii) and (iv), such increases, amendments, new agreements, removals, modifications or terminations with respect to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, (e) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liability.
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Sources: Share Subscription and Purchase Agreement (Alibaba Group Holding LTD)
Conduct in the Ordinary Course. Except for Liabilities incurred in connection with, and actions taken in compliance with, this Agreement, since (a) Since the date of the most recent financial statements included in Company Balance Sheet and except as expressly contemplated by this Agreement or as set forth on Section 3.8(a) of the “Filed Disclosure Schedules, (i) the business of the Company SEC Documents” (as defined in the Merger Agreement), the Business and its Subsidiaries has been conducted only in the ordinary course of business and consistent with past practice, and (ii) there has not been occurred any Material Adverse Effect, and from such date until (iii) neither the Company nor any of its Subsidiaries has taken any action that, if taken after the date hereof there has not been: without Parent’s consent, would constitute a material breach of Section 5.1(a).
(ab) any declarationSince the Locked Box Date, setting aside except to the extent comprising a Permitted Leakage:
(i) no dividend, return of capital or other distribution of profits or assets or other similar payment of any dividend nature has been declared, paid or other distribution (whether in cash, stock or property) with respect to any capital stock of any Transferred Subsidiary, other than dividends or distributions made by a Transferred Subsidiary to Guidant or a Share Seller, (b) any purchase, redemption or other acquisition by a Transferred Subsidiary of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant Company or any of its Affiliates Subsidiaries to any current stockholder, member or former owner of equity interests, as applicable, of the Company or any of its Subsidiaries other than such payments declared, paid or made to the Company or any of its wholly-owned Subsidiaries;
(Aii) director no payments have been made by or on behalf of the Company or any of its Subsidiaries to or in favor of or for the benefit of, or at the direction of, any Company Shareholder or any Affiliate thereof, including any payment of interest or principal on any amounts owed to the Company or any of its Subsidiaries by any Company Shareholder or any Affiliate thereof;
(iii) no shares or capital stock, notes, bonds or other securities (or any restricted stock, option, warrant or other right to acquire the same or phantom stock) of the Company or any of its Subsidiaries have been issued or sold (other than issuances to the Company or any wholly-owned Subsidiary of the Company) and no change to the equity capitalization or capital structure of the Company or any of its Subsidiaries has been made;
(iv) no changes have been made to the terms of any borrowing between the Company or any of its Subsidiaries by any Company Shareholder or any Affiliate thereof;
(v) no payment of any bonus or discretionary payment has been paid or made by the Company or any of its Subsidiaries to any director, officer or employee of the Company or any of its Subsidiaries;
(vi) no amendments or modifications have been made to the terms of remuneration of any officer or senior executive of the Company or any of its Subsidiaries;
(vii) no guarantee or indemnity relating to the obligation of any Person other than a wholly-owned Subsidiary of the Company has been entered into or agreed to by the Company or any Subsidiary of the Company other than guarantees of loans made by banks to various independent store customers of the Company who are not Specified Persons in the ordinary course of the Company’s business consistent with past practice;
(viii) no amounts owed to the Company or any of its Subsidiaries by any Company Shareholder or any Affiliate thereof shall have been waived, forgiven or released and no claim outstanding against any Company Shareholder or any Affiliate thereof has been released or waived;
(ix) no assets, rights or other benefits have been sold, acquired or transferred from or to the Company or any of its Subsidiaries other than on arm’s length terms at a fair market value;
(x) neither the Company nor any of its Subsidiaries has made or agreed to make any gift or gratuitous payment;
(xi) no liabilities have been assumed or incurred (or any indemnity given in respect thereof) by the Company or any of its Subsidiaries for the benefit of or on behalf of or in favor of any Company Shareholder or any Affiliate thereof;
(xii) no Encumbrance has been created over any of the assets of the Company or any of its Subsidiaries in favor of or on behalf of or for the benefit of any Company Shareholder or any Affiliate thereof;
(xiii) no management, monitoring or other shareholder or directors’ fees or bonuses or payments of a Transferred Subsidiary similar nature have been paid by or on behalf of the Company or any of its Subsidiaries to or for the benefit of or in favor of any Company Shareholder or any Affiliate thereof;
(Bxiv) U.S. Business Employee no costs or Non-U.S. Business Employee who is treated expenses relating to the Transactions (including the Transaction Expenses or any other transaction or sale bonuses or other payments payable as a Tier I Employee (a “Tier I Employee”result of or in connection with the consummation of the Transactions, including advisor fees and expenses) have been paid or Tier II Employee (a “Tier II Employee”) for purposes incurred, or have been agreed to be paid or incurred, by the Company or any of Guidant’s Change its Subsidiaries, in Control Severance Pay Plan for Select Employees (all individuals described excess in the foregoing clauses (A) and (Baggregate of the amount set forth on Section 3.8(b) of this clause the Disclosure Schedules;
(d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe xv) no Tax or other benefitssimilar payment has been assumed, except for normal increases in cash compensation (including cash bonuses) incurred or paid by the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice practice; and
(xvi) no agreement, arrangement or as was required under any (y) employment, deferred compensation, consulting, severance, change of control, termination or indemnification contract with any Key Personnel or (z) contract with any Key Personnel the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving Guidant of a nature contemplated by the Merger Agreement (all such contracts in the foregoing clauses (y) and (z) of this clause (d)(i), collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (ii) any granting by Guidant or understanding relating to any of its Affiliates the matters referred to any Key Personnel of (Ain this Section 3.8(b) any increase in severance has been entered into or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received in the ordinary course of business consistent with past practice or as was required under any Guidant Benefit Agreement or Guidant Benefit Plan, (iii) any entry by Guidant or any of its Affiliates into, or any amendments of, any Guidant Benefit Agreement, (iv) the removal or modification of any restrictions in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunder, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as reached. Each of the date hereof or (v) events described in this Section 3.8, and the adoptionamounts involved in connection therewith, amendment or termination of any Guidant Benefit Plan, other than, in the cases of clauses (i), (ii), (iii) and (iv), such increases, amendments, new agreements, removals, modifications or terminations with respect shall be referred to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, (e) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar herein as may have been required by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liability“Leakage.”
Appears in 1 contract
Conduct in the Ordinary Course. Except for Liabilities incurred in connection withSince March 31, and actions taken in compliance with, this Agreement, since the date of the most recent financial statements included in the “Filed Company SEC Documents” (as defined in the Merger Agreement)2023, the Business has been conducted only in the ordinary course and consistent with past practice. As amplification and not limitation of the foregoing, since March 31, 2023, neither of the Sellers have:
(a) permitted or allowed any of the assets of the Corporation or the Subsidiary to be subjected to any Encumbrance, other than and Encumbrances that will be released at or prior to the Closing;
(b) amended the charter, by-laws or other organizational documents of the Corporation or the Subsidiary;
(c) declared or paid any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(d) except in the ordinary course of business consistent with past practice, and there has not been any Material Adverse Effect, and from such date until discharged or otherwise obtained the date hereof there has not been: (a) any declaration, setting aside or payment release of any dividend Encumbrance related to the Business, or other distribution (whether in cash, stock paid or property) with respect otherwise discharged any liability related to any capital stock of any Transferred Subsidiarythe Business, other than dividends or distributions by a Transferred Subsidiary to Guidant or a Share Seller, (b) any purchase, redemption or other acquisition by a Transferred Subsidiary of any shares of capital stock or any other securities of such Transferred Subsidiary or any options, warrants, calls or rights to acquire such shares or other securities, (c) any split, combination or reclassification of any capital stock of a Transferred Subsidiary or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (d) (i) any granting by Guidant or any of its Affiliates to any current or former (A) director of a Transferred Subsidiary or (B) U.S. Business Employee or Non-U.S. Business Employee who is treated as a Tier I Employee (a “Tier I Employee”) or Tier II Employee (a “Tier II Employee”) for purposes of Guidant’s Change in Control Severance Pay Plan for Select Employees (all individuals described liabilities reflected in the foregoing clauses (A) Financial Statements and (B) of this clause (d)(i), collectively, the “Key Personnel”), of any increase in compensation, bonus or fringe or other benefits, except for normal increases in cash compensation (including cash bonuses) current liabilities incurred in the ordinary course of business consistent with past practice since the Interim Financial Statements;
(a) made any change in any method of accounting or as was required under any (y) employment, deferred compensation, consulting, severance, change of control, termination accounting practice or indemnification contract with any Key Personnel or (z) contract with any Key Personnel policy used by the benefits of which are contingent, Corporation or the terms Subsidiary;
(b) amended, terminated, cancelled or compromised any material claims of which are materially alteredthe Corporation or waived any other rights of substantial value to the Corporation or the Subsidiary;
(c) sold, upon the occurrence transferred, leased, subleased, licensed or otherwise disposed of a transaction involving Guidant of a nature contemplated by the Merger Agreement any properties or assets, real, personal or mixed (all such contracts in the foregoing clauses (y) including leasehold interests and (zintangible property) of this clause (d)(i)the Corporation or the Subsidiary, collectively, “Guidant Benefit Agreements”) or Guidant Benefit Plan (as defined in Section 3.12), (ii) any granting by Guidant or any of its Affiliates to any Key Personnel of (A) any increase in severance or termination pay or (B) any right to receive any severance or termination pay except for severance or termination pay received other than in the ordinary course of business consistent with past practice practice;
(d) made any capital expenditure or as was required commitment for any capital expenditure, in each case relating to the Business, not reflected on the Interim Financials;
(e) made any material change in the customary methods of operations of the Business;
(f) made, revoked or changed any income, capital, capital gains, franchise, windfall profits, transfer, stamp, property, excise, net worth and similar taxes, fees, levies, duties, tariffs and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority (“Tax” or “Taxes”)) election or method of Tax accounting, amended any Tax Return or filed any claim for refund or settled or compromised any liability with respect to Taxes;
(g) incurred any indebtedness not reflected on the Interim Financials;
(h) made any loan to, guaranteed any indebtedness of, or otherwise incurred any indebtedness on behalf of, any Person in connection with the Business not reflected on the Interim Financials;
(i) failed to pay any creditor any material amount owed to such creditor when due;
(i) granted any increase, or announced any increase, in the wages, salaries, compensation, bonuses, incentives, change of control, retention, severance, pension or other benefits payable by the Corporation or the Subsidiary to any of its employees, including any increase or change pursuant to any employee benefit plan, (ii) established, adopted, terminated, amended or increased or promised to increase any benefits under any Guidant Benefit Agreement such plan, in either case except as required by Law or Guidant Benefit Planany collective bargaining agreement and involving ordinary increases consistent with the past practice;
(k) issued, delivered or sold, or authorized or proposed the issuance, delivery or sale of, any equity interests of the Corporation or the Subsidiary;
(l) entered into any agreement, arrangement or transaction relating to the Business with any of its directors, officers, members, managers, employees or stockholders (or with any relative, beneficiary, spouse or other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person (“Affiliate”) of such Persons);
(m) (i) allowed any license or authorization relating to the Business to lapse or terminate or (ii) failed to renew any license or authorization that is scheduled to terminate or expire within 45 calendar days of the Closing;
(n) failed to maintain the facilities, property and equipment in good repair and operating condition, ordinary wear and tear excepted;
(o) amended, modified or consented to the termination of any Material Contract or any of the Corporation’s or the Subsidiary’s rights thereunder;
(p) (i) abandoned, sold, assigned, or granted any security interest in or to any of the Owned Intellectual Property or Licensed Intellectual Property, including failing (A) to perform or cause to be performed all applicable filings, recordings and other acts or (B) to pay or cause to be paid all required fees and taxes to maintain and protect its interest in such Intellectual Property, (ii) granted to any third party any license with respect to any Owned Intellectual Property or Licensed Intellectual Property, (iii) developed, created or invented any entry by Guidant or Intellectual Property jointly with any of its Affiliates intothird party, or any amendments of, any Guidant Benefit Agreement, (iv) disclosed, or allowed to be disclosed, any confidential Intellectual Property, unless such Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against further disclosure thereof;
(q) suffered any Material Adverse Effect (as defined below); or
(r) agreed, whether in writing or otherwise, to take any of the removal actions specified in this Section 2.07 or modification granted any options to purchase, rights of first refusal, rights of first offer or any restrictions other similar rights or commitments with respect to any of the actions specified in any Guidant Benefit Agreement or Guidant Benefit Plan or awards made thereunderthis Section 2.07, except as required to comply with applicable Law or any Guidant Benefit Agreement or Guidant Benefit Plan in effect as of the date hereof or (v) the adoption, amendment or termination of any Guidant Benefit Plan, other than, in the cases of clauses (i), (ii), (iii) and (iv), such increases, amendments, new agreements, removals, modifications or terminations with respect to Tier II Employees that (1) do not provide for any increase in compensation or benefits for any individual Tier II Employee that is material in relation to such Tier II Employee’s compensation or benefits prior to such increase and (2) in the aggregate do not result in any material increase in compensation, benefits or other similar expenses of the Business, (e) any damage, destruction or loss, whether or not covered expressly contemplated by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (f) any change in accounting methods, principles or practices of the Business materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (g) any material Tax election or any settlement or compromise of any material income Tax liabilitythis Agreement.
Appears in 1 contract