Conduct of Business Pending Closing. Except as permitted by the Agreement or otherwise consented to in writing by the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing: (a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of its Subsidiaries to conduct their operations in the ordinary course of business and will not cause or permit Aqua-Chem or any of its Subsidiaries to: (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgage, pledge or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses. (b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries. (c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted. (d) No dividend or other distribution or payment will be declared or made in respect of the Shares. (e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer. (f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business. (g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them. (h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Aqua Chem Inc), Agreement and Plan of Reorganization (Aqua Chem Inc)
Conduct of Business Pending Closing. Except Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and except as provided in Section 5.2 of the Internet America Disclosure Letter or the KeyOn Disclosure Letter (as the case may be) or as required by Applicable Law or Governmental Authority, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or otherwise consented the Effective Time, neither Internet America nor KeyOn shall, and neither Internet America nor KeyOn shall permit any of the KeyOn Subsidiaries or Internet America Subsidiaries (as applicable) to in writing by do any of the Purchaser and Newcofollowing without the prior written consent of the other Party hereto, Mr. ▇▇▇▇▇▇ ▇▇▇ which consent must be given or withheld within three calendar days of the Sellers agree that pending the Closingrequest therefor:
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts amend or propose to cause Aqua-Chem and each amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, certificate of limited partnership, limited liability company agreement, operating agreement, partnership agreement, or other governing or organizational documents;
(b) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests (other than dispositions by or among direct or indirect wholly owned Subsidiaries and cancellations of stock options or restricted stock grants forfeited in accordance with the terms of a Benefit Plan in existence on the date of this Agreement or related stock option or restricted stock grant agreements);
(c) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to conduct their operations its Equity Interests (other than by or among direct or indirect wholly owned Subsidiaries);
(d) (i) issue any Equity Interests, effect any stock split or otherwise change its capitalization as it existed on the date of this Agreement, except pursuant to (A) the exercise of options disclosed in this Agreement or the Internet America Disclosure Letter or the KeyOn Disclosure Letter, (B) the conversion of the Convertible Notes or the grant or exercise of awards granted after the date of this Agreement and expressly permitted under this Agreement, (C) the Internet America Rights Agreement in accordance with the terms thereof, or (D) the issuance of shares of KeyOn Common Stock as expressly required or permitted by this Agreement, (ii) grant, confer or award any option, warrant, conversion right or other right to acquire or otherwise with respect to any shares of its capital stock or other equity securities, or grant or issue any restricted stock or securities, (iii) amend or otherwise modify any option, warrant, conversion right or other right to acquire any shares of its capital stock existing at July 28, 2008, except as expressly required or permitted by this Agreement, (iv) with respect to any of its former, present or future officers, directors or employees, increase any compensation or benefits, award or pay any bonuses, establish any bonus plan or arrangement or enter into, amend or extend (or permit the extension of) any employment or consulting agreement, (v) adopt any new employee benefit plan or agreement (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect, except in each case as expressly required or permitted under this Agreement or as disclosed in the KeyOn Disclosure Letter or the Internet America Disclosure Letter, or (vi) permit any holder of an option or other award pertaining to shares of Internet America Common Stock or KeyOn Common Stock to have shares withheld upon exercise, vesting or payment for tax purposes, in excess of the number of shares needed to satisfy the minimum statutory withholding requirements for federal and state tax withholding;
(e) purchase, redeem or otherwise acquire any of its outstanding Equity Interests, except (i) by or among direct or indirect wholly-owned Subsidiaries, or (ii) Equity Interests purchased or withheld to satisfy Tax withholding obligation in connection with the vesting, lapse of forfeiture restrictions or exercise (as applicable) of stock options, restricted stocks and similar awards by the grantees thereof;
(f) sell, lease, license, or otherwise dispose of, or enter into a contract to sell, lease, license or otherwise dispose of, any of its assets (including capital stock of Subsidiaries) which are, individually or in the aggregate, material to it and its Subsidiaries, taken as a whole, except for (i) sales of surplus or obsolete equipment, (ii) sales of other assets in the ordinary course of business or sales of assets pursuant to contractual rights existing as of the date of this Agreement that were entered into the ordinary course of business consistent with past practices, (iii) sales, leases or other transfers between such Party and will its wholly owned Subsidiaries or between those Subsidiaries, (iv) sales, dispositions or divestitures as may be required by or in conformance with Applicable Laws in order to permit or facilitate the consummation of the transactions contemplated by this Agreement, or (v) arm’s-length sales or other transfers not cause described in clauses (i) through (iv) above for aggregate consideration not exceeding $50,000 for each of KeyOn and Internet America;
(g) liquidate, wind-up, dissolve or permit Aquaadopt any plan to liquidate, wind-Chem up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(h) acquire or agree to acquire by merger, consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or a division thereof;
(i) make any loans, advances or capital contributions to, or investments in, any Person (other than (i) loans, advances or capital contributions to a wholly owned Subsidiary or loans or advances from such a Subsidiary, (ii) customer loans and advances to employees consistent with past practices or (iii) short-term investments of cash in the ordinary course of business in accordance with the cash management procedures of Internet America, KeyOn or their respective Subsidiaries (as the case may be));
(j) terminate or amend any Internet America Material Contract or KeyOn Material Contract (as the case may be) or waive or assign any of its Subsidiaries to: rights under any Internet America Material Contract or KeyOn Material Contract (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for as the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporationcase may be), in each case in a manner that would be materially adverse to Internet America or KeyOn (as the case may be), or enter into any Internet America Material Contract or KeyOn Material Contract (as the case may be) other than customer Contracts entered into in the ordinary course of business; ;
(iik) mortgageincur any Indebtedness in excess of $25,000, pledge in the aggregate, or otherwise voluntarily encumber guarantee any of EXHIBIT 10.21 its properties such indebtedness or assets; (iii) issue or sell any debt securities or transfer warrants or rights to acquire any of its properties or assets or cancel, release or assign any indebtedness owed to them debt securities or any claims held by themof its Subsidiaries or guarantee any debt securities of others, other than (A) borrowings from that Party’s or its Subsidiary’s credit facility (the Convertible Notes in the case of KeyOn) in the ordinary course of their respective businesses; business in an amount not in excess of $50,000, (B) borrowings the proceeds of which are used to repay or repurchase other indebtedness of that Party or its Subsidiaries, or (ivC) make any investment borrowings in respect of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwiseintercompany debt, or by the purchase of (ii) enter into any property material lease (whether such lease is an operating or assets of capital lease) or create any other individual, firm or corporation, material Liens (other than Permitted Liens) on its property including any Equity Interests in its Subsidiaries except in the ordinary course of their respective businesses.business or with or between its Subsidiaries; provided, however, that for purposes of this Section 5.2(k), neither the incurrence of Indebtedness to finance, directly or indirectly, acquisitions of the business, assets or Equity Interests of another Person nor the incurrence of Indebtedness for capital expenditures shall be considered to be “in the ordinary course of business”;
(bl) No make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments; settle or compromise any material Claim, action, litigation, proceeding, arbitration or investigation relating to Taxes; or change will be made in any material respect any of its methods of reporting any items for Tax purposes from those employed in the certificates preparation of incorporation its Tax Returns for the most recent Taxable year for which a Tax Return has been filed;
(m) make or commit to make capital expenditures that in the by-laws aggregate exceed $25,000 except for those commitments or capital expenditures incurred in the ordinary course of Aqua-Chem business pursuant to Permitted Liens;
(n) enter into any new line of business material to it and its Subsidiaries taken as a whole;
(o) enter into any Contract that subjects or will subject the Surviving Corporation or its Subsidiaries.Subsidiaries to any material non-compete or similar restriction on any KeyOn Company or Internet America Company business following the Effective Time;
(cp) No except as may be required as a result of a change will be made in GAAP, change any of the authorized material accounting principles, estimates, or issued capital stock of Aqua-Chem practices used by the Internet America Companies or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.KeyOn Companies;
(dq) No dividend compromise, settle or other distribution grant any waiver or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary release related to any shareholder, director litigation or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiariesproceeding, other than contracts entered into, terminated settlements or modified compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $10,000 in the normal aggregate;
(r) engage in any transaction (other than pursuant to agreements in effect as of the date of this Agreement and that are disclosed in Internet America Disclosure Letter or KeyOn Disclosure Letter (as the case may be) and transactions between or among Internet America or KeyOn and their respective Subsidiaries in the ordinary course of business consistent with past practices) or enter into any agreement with any Affiliate (provided that for the purpose of this clause (r) only, the term “Affiliate” shall not include any employee of Internet America, KeyOn or their respective business.Subsidiaries (as the case may be) other than directors and executive officers thereof and any employees who share the same household as any such directors and executive officers);
(gs) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts willfully or intentionally breach any representation or warranty set forth in this Agreement or take any action that is reasonably likely to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf materially delay or impair the ability of the Purchaser unless otherwise agreed Parties hereto to in advance consummate the transactions contemplated by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.this Agreement; or
(ht) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not enter into any Contract or obligation to cause or permit take any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapseactions prohibited above.
Appears in 2 contracts
Sources: Merger Agreement (KeyOn Communications Holdings Inc.), Merger Agreement (Internet America Inc)
Conduct of Business Pending Closing. Except Subject to the Exceptions, and except as permitted by set forth in Section 9.1 of the Agreement Company Disclosure Schedule, or otherwise as consented to in writing by CEH LLC (which consent shall not be unreasonably withheld), during the Purchaser period from the date of this Agreement through and Newcoincluding the Closing Date, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the ClosingCompany shall not, and shall not permit Sea Coast to:
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of conduct its Subsidiaries to conduct their operations business other than in the ordinary course Ordinary Course of business Business;
(b) other than dividends and will not cause or permit Aqua-Chem or any of its Subsidiaries to: distributions by Sea Coast to the Company, (i) incur declare, set aside or pay any indebtedness for borrowed moneydividends (payable in cash, assumestock, guarantee, endorse property or otherwise become responsible for the obligations of any other individual, firm or corporationotherwise) on, or make any loans or advances to any individualother distributions in respect of its capital stock, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgagesplit, 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 capital stock, or (iii) purchase, redeem or otherwise acquire any capital stock in the Company or Sea Coast or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(c) issue, deliver, sell, pledge or otherwise voluntarily encumber or subject to any Lien any of EXHIBIT 10.21 its properties shares of capital stock or assets; any other voting securities or any securities convertible into, exercisable for or exchangeable with, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Common Stock pursuant to (i) the exercise of Options and Warrants outstanding on the date hereof, (ii) any mandatory provisions of any Plan and (iii) sell or transfer any the conversion of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in Series A Preferred outstanding on the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.date hereof;
(d) No dividend or amend its Fundamental Documents other distribution or payment will be declared or made than in respect of the Shares.accordance with this Agreement;
(e) No increase will be made acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf a substantial portion of the Purchaser unless otherwise agreed to assets of, or by any other manner, any "business" as defined in advance by the Purchaser and NewcoRule 3-05(a)(2) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aquaof Regulation S-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.X;
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Sea Coast Foods, Inc.), Merger Agreement (Aurora Foods Inc /De/)
Conduct of Business Pending Closing. Except for actions contemplated by subparagraphs below, the Company agrees that on and after the date hereof and prior to the Closing Date, except as permitted by the Agreement or otherwise consented to by Recap in writing (which consent shall not be unreasonably withheld, delayed or conditioned), as set forth in the Disclosure Schedule, or as otherwise contemplated by this Agreement (including specifically Section 7.19 hereof):
7.1.1. The Company shall conduct its business in the Purchaser ordinary course and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing:consistent with past practice in all material respects;
(a) 7.1.2. The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l Company shall use their reasonable best efforts to cause Aqua-Chem preserve the business organization of the Company intact, to preserve the goodwill of suppliers, customers, employees and each others with whom business relationships exist and maintain all Permits and Approvals;
7.1.3. Other than in connection with acquisitions in the ordinary course of its Subsidiaries business, not to conduct their operations exceed $10,000,000 individually or $17,500,000 in the aggregate in total consideration (including but not limited to cash paid, seller notes, Indebtedness assumed or other such consideration, including earn out obligations) (the "Permitted Acquisitions"), the Company shall not borrow any money, incur any Indebtedness or guarantee any Indebtedness or financial obligation of any Person other than Subsidiaries, other than to finance working capital requirements in the ordinary course of business and will consistent with past practice;
7.1.4. Other than in connection with Permitted Acquisitions, the Company shall not issue, sell or dispose of any capital stock or other equity interest in the Company or options, warrants or other rights to purchase any such capital stock or equity interest or any securities convertible into or exchangeable for such capital stock or equity interests or otherwise make or effect any change in the issued and outstanding capitalization of the Company other than pursuant to agreements existing as of the date hereof;
7.1.5. The Company shall not cause or permit Aqua-Chem any amendment, alteration or modification in the terms of any currently outstanding options, warrants or other rights to purchase any capital stock or equity interest in the Company or any securities convertible into or exchangeable for such capital stock or equity interest, including without limitation any reduction in the exercise or conversion price of any such rights or securities, any change to the vesting or acceleration terms of any such rights or securities, or any change to terms relating to the grant of any such rights or securities other than pursuant to agreements existing as of the date hereof;
7.1.6. The Company shall not declare or pay any dividend or make any other distribution, or transfer any assets, to any stockholders of the Company with respect to the Common Stock, or redeem, repurchase or otherwise reacquire any of its Subsidiaries to: (i) incur any indebtedness for borrowed moneycapital stock, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case other than except in the ordinary course of business; ;
7.1.7. Other than Permitted Acquisitions, capital expenditures permitted under this Agreement or agreements to manage practices pursuant to the management agreements and administrative services agreements of the Company with hospitals and professional corporations in accordance with past practice, the Company shall not enter into any contracts or agreements (iiwritten or oral) mortgagethat provide for minimum mandatory payments in the aggregate by any party in excess of $2,000,000 per contract per annum, pledge and to the extent the Company is a party to any such contract or agreement as of the date hereof, the Company shall not amend or waive any material rights under any such contract;
7.1.8. Subject to the provisions of Section 7.5 hereof, other than Permitted Acquisitions, the Company shall not purchase all or any substantial part of the properties or assets of, or otherwise voluntarily encumber acquire, merge or consolidate with, any Person (or division thereof);
7.1.9. The Company shall not sell, lease, transfer, assign or otherwise dispose of EXHIBIT 10.21 any material portion of its properties or assets; , except for sales in connection with any transaction to which the Company is contractually obligated prior to the date hereof or as consistent with past business practice, or as would not reasonably be expected to have a Material Adverse Effect on the Company;
7.1.10. Except pursuant to any agreement in existence on the date hereof, the Company shall not sell, lease, transfer, assign or otherwise dispose of any material Owned Real Estate or Leased Real Estate, and the Company shall not permit any lease or sublease of Leased Real Estate to terminate or expire (iii) sell except in accordance with its terms), in each case except as otherwise provided in this Agreement or transfer as consistent with past business practices or would not reasonably be expected to have a Material Adverse Effect on the Company;
7.1.11. Except as may be required by law or under any existing agreements heretofore disclosed to Recap, the Company shall not increase the compensation or fringe benefits payable or to become payable by the Company to any of the Executive Officers of the Company, other than routine or customary increases made in the ordinary course of business and consistent with past practice;
7.1.12. Except as set forth in the Disclosure Schedule, the Company shall not make any material change in the character of its properties business or assets operations that would, individually or cancelin the aggregate, release be reasonably expected to have a Material Adverse Effect on the Company;
7.1.13. The Company shall not change its significant accounting principles, methods or assign any indebtedness owed to them or any claims held by thempractices, other than in the ordinary course of their respective businessesbusiness and/or would have a detrimental impact on the financial condition of the Company, except as required by law or by GAAP;
7.1.14. The Company shall (i) use reasonable best efforts to maintain its existing Permits and Approvals, and (ii) carry on its business in compliance with applicable Law, except for failures to comply that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect on the Company;
7.1.15. The Company shall not enter into any agreement or take or commit to take any action with the intent that would, if taken on or before the Closing, result in a breach of any of the foregoing covenants contained in this Section 7.1 or of any representation or warranty of the Company contained in this Agreement;
7.1.16. Subject to the provisions of Section 7.5 hereof, the Company shall not take any action, enter into any agreement, alter any policy or commit to any of the foregoing if such action, agreement or policy would restrict the ability of the Company to consummate the Recapitalization or the Merger, and the transactions contemplated herein;
7.1.17. The Company shall not settle or resolve any litigation, arbitration or other adjudication matter not covered by insurance, if such settlement or resolution would result in a payment in excess of $2,500,000 in the aggregate; or (iv) and
7.1.18. The Company may not make any investment of a aggregate cash payment for or incur any new obligations for capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, expenditures other than capital expenditures in the ordinary course of their respective businessesbusiness consistent with past practice in amounts not exceeding $15,000,000.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.
Appears in 1 contract
Conduct of Business Pending Closing. Except Subject to the Exceptions, and except as permitted set forth in Section 5.1 of the Company Disclosure Schedule, or as consented to by the Investor (which consent shall not be unreasonably withheld), during the period from the date of this Agreement or otherwise consented to in writing by through and including the Purchaser Closing Date, the Company shall not, and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ shall not permit the Sellers agree that pending the ClosingSubsidiary to:
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of conduct its Subsidiaries to conduct their operations business other than in the ordinary course Ordinary Course of business Business;
(b) other than dividends and will not cause or permit Aqua-Chem or any of its Subsidiaries to: distributions by the Subsidiary to the Company, (i) incur declare, set aside or pay any indebtedness for borrowed moneydividends (payable in cash, assumestock, guarantee, endorse property or otherwise become responsible for the obligations of any other individual, firm or corporationotherwise) on, or make any loans or advances to any individualother distributions in respect of its capital stock, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgagesplit, 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 capital stock, or (iii) purchase, redeem or otherwise acquire any capital stock in the Company or the Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(c) issue, deliver, sell, pledge or otherwise voluntarily encumber or subject to any Lien any of EXHIBIT 10.21 its properties shares of capital stock or assets; any other voting securities or any securities convertible into, exercisable for or exchangeable with, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Common Stock pursuant to (i) the exercise of Options and Warrants outstanding on the date hereof, (ii) any mandatory provisions of any Plan and (iii) sell or transfer any the conversion of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in Series A Preferred outstanding on the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.date hereof;
(d) No dividend amend its charter, bylaws or other distribution or payment will be declared or made comparable organizational documents other than in respect of the Shares.accordance with this Agreement;
(e) No increase will be made acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf a substantial portion of the Purchaser unless otherwise agreed to assets of, or by any other manner, any "business" as defined in advance by the Purchaser and NewcoRule 3-05(a)(2) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aquaof Regulation S-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.X;
Appears in 1 contract
Conduct of Business Pending Closing. Except Each of Sellers covenants to Purchasers" and agrees that, prior to the closing date, except as permitted by the Agreement or (i) otherwise consented to in writing by Purchasers; (ii) permitted or contemplated by this Agreement; and/or (iii) legally required, by existing agreements or as necessary for the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closingcontinuance of their respective operations:
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of Each Seller shall conduct its Subsidiaries to conduct their operations only in the ordinary and usual course of consistent with past practice and, to the extent consistent therewith, each Seller shall use its respective best efforts consistent with prudent business judgment to preserve its business organization intact and will maintain its existing relations with customers, supplies, employees and business partners;
(b) Each Seller shall not cause or permit Aqua-Chem or any of its Subsidiaries to: (i) sell or pledge or agree to sell or pledge or issue any option, warrant, conversion or other right to acquire any stock owned by it; (ii) amend its certificate of incorporation or by-laws or change the number of directors; (iii) split, combine or reclassify the outstanding shares of Common Stock or any other shares of its capital stock; or (iv) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Shares or any other shares of its capital stock;
(c) Each Seller shall not (i) issue or agree to issue any additional shares of its capital stock of any class; any securities convertible into shares of any class of capital stock, or options, warrants, conversion or other rights of any kind to acquire any shares of its capital stock of any class; (ii) sell, transfer, lease or otherwise encumber any assets or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case money other than in the ordinary course of business; (ii) mortgagebusiness consistent with past practice, pledge and that, with respect to incurrence of indebtedness, is prepayable without penalty or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assetspremium; (iii) sell acquire (by merger, consolidation, acquisition of stock, purchase of substantial assets or transfer otherwise) any corporation, partnership or other business organization or enterprise; (iv) redeem purchase or acquire, or offer to acquire, any of its properties capital stock; (v) purchase or become liable for any items of property, plant, equipment, machinery or other fixed or capital stock; (v) increase the salary, compensation and/or benefits of any employee; (v) purchase or become liable for any items of property, plant, equipment, machinery or other fixed or capital assets for any amount, in the aggregate, in excess of $5,000 in any single transaction or cancelseries of related transactions, release or assign any indebtedness owed to them or any claims held by them, other than except that each Seller may purchase in the ordinary course of their respective businesses; business, or (ivvi) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible enter into or exchangeable for modify in any material respect any contract, agreement, commitment or giving arrangement with respect to any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.the foregoing;
(d) No dividend Each Seller shall not adopt, or amend in any material respect, any collective bargaining, bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other distribution plan, agreement, trust, fund or payment will be declared or made in respect arrangement for the benefit of the Shares.employees;
(e) No increase will no reduction shall be made by either Seller in the compensation scope or benefits payable nature or amount of any material insurance coverage; provided however, that, with respect to become payable insurance coverage that lapses, expires or is otherwise terminated by Aqua-Chem the insurer, the relevant Seller shall, to the maximum extent reasonably practicable and renew such insurance and comparable or any Subsidiary to any shareholder, director or officer.greater coverage;
(f) No contract, lease Each Seller shall not take any action or commitment will fail to take any action if such action or failure to act would cause any of its representations and warranties contained in this Agreement to be entered into, terminated or modified by or false in any respect on behalf and as of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.Closing Date;)
(g) The Sellers Each Seller and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts Principal Shareholder shall not agree to, or commit to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intacttake, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapseactions prohibited in this Article 8.
Appears in 1 contract
Conduct of Business Pending Closing. Except Prior to the Closing Date, the Company will (except as permitted by the Agreement or otherwise consented to approved in writing by the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing:Buyer or otherwise permitted under this Agreement):
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of carry on its Subsidiaries to conduct their operations business only in the ordinary course and in a manner consistent with past practice;
(b) maintain its properties and facilities, including those held under leases, in their current good working order and condition, ordinary wear and tear excepted;
(c) not sell, lease, encumber or otherwise dispose of, or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of business and will not cause or permit Aqua-Chem or any portion of its Subsidiaries to: (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgage, pledge or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.consistent with past practice;
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their all commercially reasonable efforts to cause Aqua-Chem maintain and preserve its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and retain its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and maintain its Subsidiaries the good will of their relationships with suppliers, customers vendors, customers, creditors and others having business relations with them.it;
(e) not declare, set aside or pay any dividend or other distribution (whether in stock or property) with respect to any of its equity securities, or make any redemption, purchase or other acquisition of any of its equity securities;
(f) not issue any Membership Interests or options, warrants or other rights to purchase Membership Interests, or any securities convertible into, or exchangeable for Membership Interests;
(g) not borrow any money or incur or guarantee any indebtedness for borrowed money;
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not enter into or amend any material contracts or agreements;
(i) not amend its organizational documents, including without limitation its limited liability operating agreement;
(j) not adopt any plan or agreement of merger or liquidation;
(k) not cancel or pay any Company Debt (in any amount, but except for payments that are within the scope of Section 3.4(e) above) or waive any receivables, claims or rights in excess of US$100,000 individually or in the aggregate;
(1) not make any payments to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH Affiliates except in the ordinary course of business pursuant to be canceled or terminated or any of the coverage thereunder Contract Operating Agreement referred to lapse.in Section 10.1;
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Pacific Energy Resources LTD)
Conduct of Business Pending Closing. Except From the date of this Agreement to the Closing Date, Shareholders (as permitted by the Agreement officers, directors or otherwise consented to in writing by the Purchaser employees of Seller) and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the ClosingSeller:
(ai) The Sellers will maintain the Purchased Assets and Mr. ▇▇▇▇▇▇ ▇▇▇l use not remove any Purchased Assets from the Sites except in the ordinary course of business;
(ii) will perform their reasonable efforts obligations under the Assigned Agreements;
(iii) will conduct the Business only in the ordinary course;
(iv) will not (A) fail to cause Aqua-Chem comply in any material respect with any laws, ordinances, regulations or other governmental restrictions applicable in any respect to the Business or any of the Purchased Assets, (B) grant any powers of attorney to act for the Business after the Closing Date, (C) mortgage or pledge or otherwise encumber any of the Purchased Assets, (D) cancel or terminate any contract, agreement or other instrument material to the Business, other than contracts, agreements and each other instruments which are not to be assigned to Buyer unless Shareholders or Seller is otherwise obligated to maintain them in effect or are necessary for the conduct of its Subsidiaries the Business, (E) engage in or enter into any material transaction with respect to conduct their operations the Business of any nature not expressly provided for herein, (F) pay any dividend or make any other distribution or payment to the Shareholders or Seller, except salaries regularly payable to Shareholders in the ordinary course of business and will not cause as set forth on Exhibit 5.01(r), (G) amend, modify or permit Aqua-Chem or supplement any of its Subsidiaries to: Employment Contract listed on Exhibit 5.01(m)
(i) incur (except as provided on Exhibit 5.01(m)(i)) or (H) issue any indebtedness additional shares of capital stock of the Seller or any options, rights or warrants exchangeable for borrowed moneyor convertible into any shares of capital stock of the Seller; and
(A) take such action as may reasonably be necessary to preserve the Purchased Assets, assume, guarantee, endorse or otherwise become responsible for (B) maintain inventory of the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, kinds and in each case other than the quantities maintained in the ordinary course of business; the Business, (iiC) mortgage, pledge or otherwise voluntarily encumber maintain its books and records in a manner consistent with past practices and promptly advise Buyer in writing of any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than material adverse change in the ordinary course of their respective businesses; or condition (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer financial or otherwise, or by ) of the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation Purchased Assets or the by-laws Business of Aqua-Chem or Seller and (D) use its Subsidiaries.
(c) No change will be made in reasonable commercial efforts to preserve the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect organization of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or Business intact and continue its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and operations at its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intactpresent levels, to keep available to Aqua-Chem Buyer and its Subsidiaries Sage the services of their present officers and employees Employees and to preserve for Aqua-Chem and its Subsidiaries the good will goodwill of their Seller's suppliers, customers customers, creditors and others having business relations with themSeller in connection with the Business.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.
Appears in 1 contract
Conduct of Business Pending Closing. Except Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and except as provided in Section 5.2 of the Company Disclosure Letter, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or otherwise consented to in writing by the Purchaser and NewcoEffective Time, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending Company shall not, nor will the Closing:Company permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) The Sellers except to the extent required to comply with applicable Law or the rules and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts regulations of any securities exchange on which the Company Common Stock is listed or admitted to cause Aqua-Chem and each trading, amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, certificate of limited partnership, limited liability company agreement, operating agreement, partnership agreement, or other governing or organizational documents;
(b) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests (other than dispositions by or among direct or indirect wholly owned Subsidiaries and cancellations of stock options or restricted stock grants forfeited in accordance with the terms of a Benefit Plan in existence on the date of this Agreement or related stock option or restricted stock grant agreements);
(c) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to conduct their operations its Equity Interests (other than by or among direct or indirect wholly owned Subsidiaries);
(d) issue, grant or sell, or agree to issue, grant or sell, any Equity Interests, including capital stock (other than issuances of Equity Interests (i) pursuant to the exercise of any stock options or other equity awards outstanding on the date of this Agreement, (ii) in an amount consistent with past practices to non-executive officer employees hired after the date hereof in the ordinary course of business and will consistent with past practices, not cause to exceed 15,000 shares in the aggregate of Company Common Stock or permit Aqua-Chem (iii) by a wholly owned Subsidiary of the Company to the Company or any of its Subsidiaries to: wholly owned Subsidiaries), change its capitalization from that which exists on the date hereof (except as described by the foregoing exceptions), issue, sell, award or grant any rights, options or warrants to acquire its Equity Interests or any conversion rights with respect to its Equity Interests, or enter into or amend any agreements with any holder of its Equity Interests with respect to holding, voting or disposing of such Equity Interests;
(e) purchase, redeem or otherwise acquire any of its outstanding Equity Interests, except (i) incur any indebtedness for borrowed moneyby or among direct or indirect wholly owned Subsidiaries or (ii) shares of Company Common Stock that are withheld to satisfy federal withholding requirements upon vesting of Company Restricted Stock;
(f) merge or consolidate with, assumeor sell, guaranteetransfer, endorse lease, sublease or otherwise become responsible dispose of all or a substantial portion of its assets to, any other Person (other than transfers among the Acquired Companies), except for any sales, leases or dispositions of assets (i) to customers in the obligations ordinary course of business consistent with past practices or (ii) to a non-affiliated Person in an arms-length transaction for not less than fair market value and not in excess of $25,000 individually or $100,000 in the aggregate;
(g) liquidate, wind-up, dissolve or adopt any plan to liquidate, wind-up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(h) acquire or agree to acquire by merger, consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or a division thereof;
(i) sell, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber, any Equity Interests of any other individualPerson (including any Equity Interests in any Subsidiary), firm other than Permitted Liens or corporationLiens pursuant to any credit agreement to which it is a party and that is outstanding as of the date hereof;
(j) make any loans, advances or capital contributions to, or make investments in, any Person (other than (i) loans, advances or capital contributions to a wholly owned Subsidiary or loans or advances from such a Subsidiary, (ii) customer loans and advances to employees consistent with past practices or (iii) short-term investments of cash in the ordinary course of business in accordance with the cash management procedures of the Acquired Companies);
(k) terminate or amend any individualCompany Material Contract or waive or assign any of its rights under any Company Material Contract in a manner that would be materially adverse to the Company, firm or corporation, in each case enter into any Company Material Contract other than customer or vendor Contracts entered into in the ordinary course of business; ;
(iil) mortgage(i) incur or assume any Indebtedness, pledge except indebtedness incurred under any credit agreement to which it is a party and that is outstanding as of the date hereof, letters of credit, surety bonds or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than similar arrangements incurred in the ordinary course of their respective businesses; business consistent with past practices or indebtedness incurred with respect to any matter expressly permitted by this Section 5.2, or (ivii) make any investment of a capital nature either by purchase of stock or securitiesassume, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, endorse (other than endorsements of negotiable instruments in the ordinary course of their respective businesses.
business), guarantee or otherwise become liable or responsible for (whether directly, indirectly, contingently or otherwise) the liabilities, obligations or performance of any other Person, except under any credit agreement to which it is a party and that is outstanding as of the date hereof or in the ordinary course of business consistent with past practices; provided, however, that in no case shall the Company and its Subsidiaries, taken as a whole, incur or assume any Indebtedness, or assume, endorse, guarantee or otherwise become liable for any liabilities, obligations or performance, with a value in excess of $7,300,000 in the aggregate; provided, further, that in no case from the Merger Consideration Determination Date to and through the Closing Date shall the Company and its Subsidiaries, taken as a whole, incur or assume any additional Indebtedness, or assume, endorse, guarantee or otherwise become liable for any additional liabilities, obligations or performance that would result in the Company’s having, as of a time immediately prior to the Closing, an aggregate amount of (a) Funded Debt; plus (b) No change will other Company debt, if any, not including ordinary trade payables, in excess of Net Debt;
(m) (i) during the period from the date of this Agreement to the Closing Date, except as otherwise permitted under this Agreement, enter into any additional Contracts, Benefit Plans or agreements, in each case, with employees, directors or consultants of the Acquired Companies, or make or agree to make any material changes to any existing Contracts, Benefit Plans or agreements, in each case, with employees, directors or consultants of the Acquired Companies; provided, however, that the Company may in its sole discretion and without the prior written consent of Parent amend or adopt any arrangement to cause an arrangement existing on the date hereof to comply with, or be made exempt from, Section 409A of the Internal Revenue Code if such amendment or arrangement does not cause or entail any cost or expense to Parent (other than reasonable and necessary fees and expenses of advisors in connection therewith), (ii) grant any increase in the certificates of incorporation compensation (including base salary or the by-laws of Aqua-Chem bonus) or its Subsidiaries.
benefits payable to any officer, (ciii) No change will be made except in the authorized or issued capital stock of Aqua-Chem or its Subsidiariesconnection with promotions consistent with past practices, nor will grant any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable to any non-officer or (iv) except as required to comply with applicable Law or any agreement or policy in existence as of the date of this Agreement, adopt, enter into, amend or otherwise increase, or accelerate the payment or vesting of any amounts, benefits or rights payable or accrued (or to become payable by Aqua-Chem or accrued) under any Subsidiary Benefit Plan;
(n) with respect to any shareholderformer, director present or officer.future Representative, increase any compensation or benefits payable to such Representative or enter into, amend, modify or extend any employment or consulting agreement or Benefit Plan with of for such Representative;
(fo) No contractcreate, lease incur, assume or commitment permit to exist any Lien on any of its properties or assets, except for Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date thereof;
(p) (i) make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments, (ii) settle or compromise any material Claim, action, litigation, proceeding, arbitration or investigation relating to Taxes or (iii) change in any material respect any of its methods of reporting any items for Tax purposes from those employed in the preparation of its Tax Returns for the most recent Taxable year for which a Tax Return has been filed, except as may be required by applicable Law;
(q) make or commit to make capital expenditures exceeding $250,000 in the aggregate;
(r) take any action that is reasonably likely to materially delay or impair the ability of the Company to consummate the transactions contemplated by this Agreement;
(s) enter into any new line of business material to the Acquired Companies taken as a whole;
(t) enter into any Contract that subjects or will subject the Surviving Corporation or Parent to any non-compete or similar restriction on any Acquired Company business following the Effective Time;
(u) enter into any Contract the effect of which is or will be entered intoto grant a Third Party any right or potential right of license to any material Intellectual Property of any Acquired Company;
(v) except as may be required as a result of a change in GAAP, terminated change any of the material accounting principles, estimates, or modified practices used by the Acquired Companies;
(w) compromise, settle or on behalf of Aqua-Chem grant any waiver or its Subsidiariesrelease related to any litigation or proceeding, other than contracts entered into, terminated settlements or modified compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $25,000 individually or $100,000 in the normal aggregate;
(x) engage in any transaction (other than pursuant to agreements in effect as of the date of this Agreement and that are disclosed in the Company Disclosure Letter and transactions between or among the Acquired Companies in the ordinary course of their respective business.business consistent with past practice) or enter into any agreement with any Affiliate (provided that for the purpose of this clause (x) only, the term “Affiliate” shall not include any employee of the Acquired Companies other than directors and executive officers thereof and any employees who share the same household as any such directors and executive officers); or
(gy) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts enter into any Contract or obligation with respect to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapseforegoing.
Appears in 1 contract
Conduct of Business Pending Closing. Except as permitted by the Agreement or otherwise consented to in writing by the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing:
(a) The Sellers Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts except as provided in Section 5.2(a) of the Company Disclosure Letter, 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, and the Company shall cause Aqua-Chem and each of its Subsidiaries not to, do any of the following without the prior written consent of the Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(i) except to conduct their operations the extent required to comply with applicable Law or the rules and regulations of the NYSE, amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, certificate of limited partnership, limited liability company agreement, operating agreement, partnership agreement, or other governing or organizational documents;
(ii) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests (other than dispositions by or among direct or indirect wholly owned Subsidiaries and cancellations of stock options or restricted stock grants forfeited in accordance with the terms of a Company Incentive Plan in existence on the date of this Agreement or related stock option or restricted stock grant agreements);
(iii) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to its Equity Interests (other than by or among direct or indirect wholly owned Subsidiaries);
(iv) issue, grant or sell, or agree to issue, grant or sell, any Equity Interests, including capital stock (other than issuances or grants of (i) Equity Interests pursuant to the exercise of any stock options or other equity awards outstanding on the date of this Agreement, (ii) (A) compensatory stock options or restricted stock in an amount consistent with past practices in connection with new hires of non-officers (including by acquisition of an entity or business) and (B) compensatory stock options in an amount consistent with past practices for annual grants to any officer or employee of the Company or any of its Subsidiaries in the ordinary course of business, provided that the amounts so issued or granted pursuant to clauses (A) and (B) shall not exceed 330,000 shares in the aggregate of Company Common Stock (but in no event greater than 110,000 shares of restricted stock) with the issuance or grant to any specific officer or employee subject to the prior written approval of Parent and, provided further, that any such issuance or grant pursuant to clauses (A) and (B) above will not provide for accelerated vesting or lapsing of any restrictions in connection with the consummation of the Merger, or (iii) by a wholly owned Subsidiary of the Company to the Company or any of its wholly owned Subsidiaries (as the case may be)), or enter into or amend any agreements with any holder of its Equity Interests with respect to holding, voting or disposing of such Equity Interests;
(v) purchase, redeem or otherwise acquire any of its outstanding Equity Interests, except (i) by or among direct or indirect wholly owned Subsidiaries or (ii) shares of Company Common Stock that are withheld to satisfy federal withholding requirements upon vesting of Company Restricted Stock;
(vi) sell, transfer, lease, sublease or otherwise dispose of, by merger or otherwise, any of its assets to, any other Person (other than transfers among the Acquired Companies), except for any sales, leases or dispositions of assets (i) to customers in the ordinary course of business consistent with past practices or (ii) to a non-affiliated Person in an arms-length transaction for not less than fair market value and will not cause in excess of $5.0 million individually or permit Aqua$10.0 million in the aggregate;
(vii) liquidate, wind-Chem up, dissolve or adopt any plan to liquidate, wind-up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(viii) acquire or agree to acquire by merger, consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or a division thereof, except for all such acquisitions involving aggregate consideration of not more than $10.0 million;
(ix) sell, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber, any Equity Interests of any other Person (including any Equity Interests in any Subsidiary), other than Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date hereof;
(x) make any loans, advances or capital contributions to, or investments in, any Person (other than (i) loans, advances or capital contributions to a wholly owned Subsidiary or loans or advances from such a Subsidiary, (ii) customer loans and advances to employees consistent with past practices or (iii) short-term investments of cash in the ordinary course of business in accordance with the cash management procedures of the Company or its Subsidiaries);
(xi) terminate or amend any Company Material Contract or waive or assign any of its Subsidiaries to: (i) incur rights under any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for Company Material Contract in a manner that would be materially adverse to the obligations of any other individual, firm or corporationCompany, or make enter into any loans or advances to any individual, firm or corporation, in each case Company Material Contract other than customer Contracts entered into in the ordinary course of business; ;
(iixii) mortgage(A) incur or assume any Indebtedness for borrowed money, pledge except (1) indebtedness incurred under any credit agreement to which it is a party and that is outstanding as of the date hereof, (2) letters of credit, surety bonds or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than similar arrangements incurred in the ordinary course of their respective businesses; business consistent with past practices or (iv3) make indebtedness incurred with respect to any investment of a capital nature either matter expressly permitted by purchase of stock or securities, contributions to capital, property transfer or otherwisethis Section 5.2, or by the purchase of any property or assets of any other individual(B) assume, firm or corporation, endorse (other than endorsements of negotiable instruments in the ordinary course of their respective businesses.business), guarantee or otherwise become liable or responsible for (whether directly, indirectly, contingently or otherwise) the liabilities, obligations or performance of any other Person, except under any credit agreement to which it is a party and that is outstanding as of the date hereof or in the ordinary course of business consistent with past practices;
(bxiii) No change will be made in the certificates of incorporation (A) Increase or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right agree to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem to the directors, officers or employees of the Company or any Subsidiary of its Subsidiaries, except (1) for increases in cash compensation (including bonuses) of non-officer employees in the ordinary course of business in accordance with past practices (other than any general increases applicable to all or significant portion of any business unit, segment, division, location, or functional area of the Company or any Company Subsidiary), (2) as provided under any Company Benefit Plan or any other contractual arrangement as in effect on the date of this Agreement, (3) in connection with the assumption by any non-officer employee of material new or additional responsibilities, or (4) to respond to offers of employment to any shareholdernon-officer employee made by a Third Party; (B) other than as specifically set forth in Section 5.2 of the Company Disclosure Letter, director grant any additional severance or officertermination pay to, or enter into any employment, retention or severance agreements with, any employees or officers, other than (1) payments or agreements paid to or entered into with employees (other than officers) in the ordinary course of business in accordance with past practices or (2) as provided under any Company Benefit Plan or any other contractual arrangement as in effect on the date of this Agreement; (C) establish, adopt, enter into or materially and adversely (to the Company or any Company Subsidiary) amend any collective bargaining agreement (other than as required by Law); or (D) establish, adopt, enter into, materially amend or terminate any Company Benefit Plan (except for any amendments in order to comply with applicable Law or as expressly permitted by clause (A) or (B) of this Section);
(xiv) create, incur, assume or permit to exist any Lien on any of its properties or assets, except for Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date thereof;
(xv) make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments; settle or compromise any material Claim, action, litigation, proceeding, arbitration or investigation relating to Taxes; or change in any material respect any of its methods of reporting any items for Tax purposes from those employed in the preparation of its Tax Returns for the most recent Taxable year for which a Tax Return has been filed, except as may be required by applicable Law;
(xvi) make or commit to make capital expenditures except as set forth in Section 5.2 of the Company Disclosure Letter;
(xvii) enter into any new line of business material to it and its Subsidiaries taken as a whole;
(xviii) enter into any Contract that subjects or will subject the Surviving Corporation or Parent to any material non-compete or similar restriction on any Acquired Company business following the Effective Time;
(xix) enter into any Contract the effect of which is or will be to grant a Third Party any right or potential right of license to any material Intellectual Property of any Acquired Company;
(xx) authorize or approve, or knowingly enter into any new Contract to provide products or services to any Person in countries in which the United States has instituted sanctions;
(xxi) except as may be required as a result of a change in GAAP, change any of the material accounting principles, estimates, or practices used by the Acquired Companies;
(xxii) compromise, settle or grant any waiver or release related to any litigation or proceeding, other than monetary settlements or compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $0.5 million individually or $2.0 million in the aggregate (and related confidentiality obligations);
(xxiii) engage in any transaction or enter into any agreement with any Affiliate (provided that for the purpose of this clause (y) only, the term “Affiliate” shall not include any employee of the Company or its Subsidiaries other than directors and executive officers thereof and any employees who share the same household as any such directors and executive officers), except pursuant to agreements in effect as of the date of this Agreement and that are disclosed in the Company Disclosure Letter and transactions between or among Company and its Subsidiaries in the ordinary course of business consistent with past practice; or
(xxiv) enter into any Contract or obligation with respect to any of the foregoing.
(fb) No contractExcept as permitted or contemplated by the terms of this Agreement, lease and except as provided by Section 5.2(b) of the Parent Disclosure Letter, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or commitment will be entered intothe Effective Time, terminated the Parent shall not, and shall cause each of its Subsidiaries not to, (i) amend the Parent Charter Documents, (ii) declare, set aside or modified by pay any dividend payable in cash, stock or on behalf property in respect of Aqua-Chem any capital stock other than dividends from or among its Subsidiaries; (iii) acquire or agree to acquire by merging or consolidating with, other than contracts entered into, terminated or modified by purchasing an equity interest in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder assets of, or by any other manner, any business or corporation, partnership, or other organization or division but only to lapsethe extent that any of the foregoing could reasonably be expected to prevent or materially delay or interfere with the consummation of the Merger, (iv) sell, transfer, lease or otherwise dispose to a Third Party, directly or indirectly and whether by merger, sale or transfer of assets or capital stock or otherwise, 25% or more of the assets, net revenues or net income of the Parent and its Subsidiaries, taken as a whole, (v) liquidate, wind-up, dissolve or adopt any plan to liquidate, wind-up or dissolve the Parent, or (vi) enter into any contract or obligation with respect to the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Natco Group Inc)
Conduct of Business Pending Closing. Except as permitted by The Company covenants and agrees that, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, unless the Majority Purchasers shall otherwise consented agree in writing, the businesses of the Company shall be conducted only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice. By way of amplification and not limitation, except as contemplated by this Agreement, the Company shall not, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, directly or indirectly do, or propose to in writing by do, any of the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ following without the Sellers agree that pending prior written consent of the ClosingMajority Purchasers:
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts amend or otherwise change the Company's Certificate of Incorporation or By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of any shares of Common Stock, or Preferred Stock, or any options, warrants, convertible securities or other rights of any kind to cause Aqua-Chem and each acquire shares of Common Stock or Preferred Stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company at a purchase price per share that is less than the purchase price per Purchased Share to be paid by the Purchasers, except (i) pursuant to issued, outstanding or authorized options, warrants or other Securities, or (ii) for the issuance of capital stock or other securities in connection with the establishment of corporate relationships for purposes other than capital raising;
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its Subsidiaries to conduct their operations capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except in the ordinary course of business and will not cause consistent with past practice; (iii) enter into any contract or permit Aqua-Chem agreement material to the business, results of operations or any financial condition of its Subsidiaries to: (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case Company other than in the ordinary course of business, consistent with past practice; (iiiv) mortgageauthorize any capital expenditure in excess of $100,000; or (v) enter into or amend any contract, pledge agreement, commitment or arrangement with respect to any matter set forth in this subsection (e);
(f) sell, assign or otherwise voluntarily encumber transfer all or substantially all of the assets of the Company; or
(g) take any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by themaction, other than reasonable and usual actions in the ordinary course of their respective businesses; business and consistent with past practice, with respect to accounting policies or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businessesprocedures.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapse.
Appears in 1 contract
Conduct of Business Pending Closing. Except as permitted by the Agreement or otherwise consented to in writing by the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing:
(a) The Sellers Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts except as provided in Section 5.2(a) of the Company Disclosure Letter, 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, and the Company shall cause Aqua-Chem and each of its Subsidiaries not to, do any of the following without the prior written consent of the Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(i) except to conduct their operations the extent required to comply with applicable Law or the rules and regulations of the NYSE, amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, certificate of limited partnership, limited liability company agreement, operating agreement, partnership agreement, or other governing or organizational documents;
(ii) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests (other than dispositions by or among direct or indirect wholly owned Subsidiaries and cancellations of stock options or restricted stock grants forfeited in accordance with the terms of a Company Incentive Plan in existence on the date of this Agreement or related stock option or restricted stock grant agreements);
(iii) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to its Equity Interests (other than by or among direct or indirect wholly owned Subsidiaries);
(iv) issue, grant or sell, or agree to issue, grant or sell, any Equity Interests, including capital stock (other than issuances or grants of (i) Equity Interests pursuant to the exercise of any stock options or other equity awards outstanding on the date of this Agreement, (ii) (A) compensatory stock options or restricted stock in an amount consistent with past practices in connection with new hires of non-officers (including by acquisition of an entity or business) and (B) compensatory stock options in an amount consistent with past practices for annual grants to any officer or employee of the Company or any of its Subsidiaries in the ordinary course of business, provided that the amounts so issued or granted pursuant to clauses (A) and (B) shall not exceed 333,000 shares in the aggregate of Company Common Stock (but in no event greater than 110,000 shares of restricted stock) with the issuance or grant to any specific officer or employee subject to the prior written approval of Parent and, provided further, that any such issuance or grant pursuant to clauses (A) and (B) above will not provide for accelerated vesting or lapsing of any restrictions in connection with the consummation of the Merger, or (iii) by a wholly owned Subsidiary of the Company to the Company or any of its wholly owned Subsidiaries (as the case may be)), or enter into or amend any agreements with any holder of its Equity Interests with respect to holding, voting or disposing of such Equity Interests;
(v) purchase, redeem or otherwise acquire any of its outstanding Equity Interests, except (i) by or among direct or indirect wholly owned Subsidiaries or (ii) shares of Company Common Stock that are withheld to satisfy federal withholding requirements upon vesting of Company Restricted Stock;
(vi) sell, transfer, lease, sublease or otherwise dispose of, by merger or otherwise, any of its assets to, any other Person (other than transfers among the Acquired Companies), except for any sales, leases or dispositions of assets (i) to customers in the ordinary course of business consistent with past practices or (ii) to a non-affiliated Person in an arms-length transaction for not less than fair market value and will not cause in excess of $5.0 million individually or permit Aqua$10.0 million in the aggregate;
(vii) liquidate, wind-Chem up, dissolve or adopt any plan to liquidate, wind-up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(viii) acquire or agree to acquire by merger, consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or a division thereof, except for all such acquisitions involving aggregate consideration of not more than $10.0 million;
(ix) sell, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber, any Equity Interests of any other Person (including any Equity Interests in any Subsidiary), other than Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date hereof;
(x) make any loans, advances or capital contributions to, or investments in, any Person (other than (i) loans, advances or capital contributions to a wholly owned Subsidiary or loans or advances from such a Subsidiary, (ii) customer loans and advances to employees consistent with past practices or (iii) short-term investments of cash in the ordinary course of business in accordance with the cash management procedures of the Company or its Subsidiaries);
(xi) terminate or amend any Company Material Contract or waive or assign any of its Subsidiaries to: (i) incur rights under any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for Company Material Contract in a manner that would be materially adverse to the obligations of any other individual, firm or corporationCompany, or make enter into any loans or advances to any individual, firm or corporation, in each case Company Material Contract other than customer Contracts entered into in the ordinary course of business; ;
(iixii) mortgage(A) incur or assume any Indebtedness for borrowed money, pledge except (1) indebtedness incurred under any credit agreement to which it is a party and that is outstanding as of the date hereof, (2) letters of credit, surety bonds or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than similar arrangements incurred in the ordinary course of their respective businesses; business consistent with past practices or (iv3) make indebtedness incurred with respect to any investment of a capital nature either matter expressly permitted by purchase of stock or securities, contributions to capital, property transfer or otherwisethis Section 5.2, or by the purchase of any property or assets of any other individual(B) assume, firm or corporation, endorse (other than endorsements of negotiable instruments in the ordinary course of their respective businesses.business), guarantee or otherwise become liable or responsible for (whether directly, indirectly, contingently or otherwise) the liabilities, obligations or performance of any other Person, except under any credit agreement to which it is a party and that is outstanding as of the date hereof or in the ordinary course of business consistent with past practices;
(bxiii) No change will be made in the certificates of incorporation (A) Increase or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right agree to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem to the directors, officers or employees of the Company or any Subsidiary of its Subsidiaries, except (1) for increases in cash compensation (including bonuses) of non-officer employees in the ordinary course of business in accordance with past practices (other than any general increases applicable to all or significant portion of any business unit, segment, division, location, or functional area of the Company or any Company Subsidiary), (2) as provided under any Company Benefit Plan or any other contractual arrangement as in effect on the date of this Agreement, (3) in connection with the assumption by any non-officer employee of material new or additional responsibilities, or (4) to respond to offers of employment to any shareholdernon-officer employee made by a Third Party; (B) other than as specifically set forth in Section 5.2 of the Company Disclosure Letter, director grant any additional severance or officertermination pay to, or enter into any employment, retention or severance agreements with, any employees or officers, other than (1) payments or agreements paid to or entered into with employees (other than officers) in the ordinary course of business in accordance with past practices or (2) as provided under any Company Benefit Plan or any other contractual arrangement as in effect on the date of this Agreement; (C) establish, adopt, enter into or materially and adversely (to the Company or any Company Subsidiary) amend any collective bargaining agreement (other than as required by Law); or (D) establish, adopt, enter into, materially amend or terminate any Company Benefit Plan (except for any amendments in order to comply with applicable Law or as expressly permitted by clause (A) or (B) of this Section);
(xiv) create, incur, assume or permit to exist any Lien on any of its properties or assets, except for Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date thereof;
(xv) make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments; settle or compromise any material Claim, action, litigation, proceeding, arbitration or investigation relating to Taxes; or change in any material respect any of its methods of reporting any items for Tax purposes from those employed in the preparation of its Tax Returns for the most recent Taxable year for which a Tax Return has been filed, except as may be required by applicable Law;
(xvi) make or commit to make capital expenditures except as set forth in Section 5.2 of the Company Disclosure Letter;
(xvii) enter into any new line of business material to it and its Subsidiaries taken as a whole;
(xviii) enter into any Contract that subjects or will subject the Surviving Corporation or Parent to any material non-compete or similar restriction on any Acquired Company business following the Effective Time;
(xix) enter into any Contract the effect of which is or will be to grant a Third Party any right or potential right of license to any material Intellectual Property of any Acquired Company;
(xx) authorize or approve, or knowingly enter into any new Contract to provide products or services to any Person in countries in which the United States has instituted sanctions;
(xxi) except as may be required as a result of a change in GAAP, change any of the material accounting principles, estimates, or practices used by the Acquired Companies;
(xxii) compromise, settle or grant any waiver or release related to any litigation or proceeding, other than monetary settlements or compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $0.5 million individually or $2.0 million in the aggregate (and related confidentiality obligations);
(xxiii) engage in any transaction or enter into any agreement with any Affiliate (provided that for the purpose of this clause (y) only, the term “Affiliate” shall not include any employee of the Company or its Subsidiaries other than directors and executive officers thereof and any employees who share the same household as any such directors and executive officers), except pursuant to agreements in effect as of the date of this Agreement and that are disclosed in the Company Disclosure Letter and transactions between or among Company and its Subsidiaries in the ordinary course of business consistent with past practice; or
(xxiv) enter into any Contract or obligation with respect to any of the foregoing.
(fb) No contractExcept as permitted or contemplated by the terms of this Agreement, lease and except as provided by Section 5.2(b) of the Parent Disclosure Letter, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or commitment will be entered intothe Effective Time, terminated the Parent shall not, and shall cause each of its Subsidiaries not to, (i) amend the Parent Charter Documents, (ii) declare, set aside or modified by pay any dividend payable in cash, stock or on behalf property in respect of Aqua-Chem any capital stock other than dividends from or among its Subsidiaries; (iii) acquire or agree to acquire by merging or consolidating with, other than contracts entered into, terminated or modified by purchasing an equity interest in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder assets of, or by any other manner, any business or corporation, partnership, or other organization or division but only to lapsethe extent that any of the foregoing could reasonably be expected to prevent or materially delay or interfere with the consummation of the Merger, (iv) sell, transfer, lease or otherwise dispose to a Third Party, directly or indirectly and whether by merger, sale or transfer of assets or capital stock or otherwise, 25% or more of the assets, net revenues or net income of the Parent and its Subsidiaries, taken as a whole, (v) liquidate, wind-up, dissolve or adopt any plan to liquidate, wind-up or dissolve the Parent, or (vi) enter into any contract or obligation with respect to the foregoing.
Appears in 1 contract
Conduct of Business Pending Closing. Except Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and except as provided in Section 5.2 of the Company Disclosure Letter, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or otherwise consented to in writing by the Purchaser and NewcoEffective Time, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending Company shall not, nor will the Closing:Company permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) The Sellers except to the extent required to comply with applicable Law or the rules and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts regulations of any securities exchange on which the Company Common Stock is listed or admitted to cause Aqua-Chem and each trading, amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, certificate of limited partnership, limited liability company agreement, operating agreement, partnership agreement, or other governing or organizational documents;
(b) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests (other than dispositions by or among direct or indirect wholly owned Subsidiaries and cancellations of stock options or restricted stock grants forfeited in accordance with the terms of a Benefit Plan in existence on the date of this Agreement or related stock option or restricted stock grant agreements);
(c) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to conduct their operations its Equity Interests (other than by or among direct or indirect wholly owned Subsidiaries);
(d) issue, grant or sell, or agree to issue, grant or sell, any Equity Interests, including capital stock (other than issuances of Equity Interests (i) pursuant to the exercise of any stock options or other equity awards outstanding on the date of this Agreement, (ii) in an amount consistent with past practices to non-executive officer employees hired after the date hereof in the ordinary course of business and will consistent with past practices, not cause to exceed 15,000 shares in the aggregate of Company Common Stock or permit Aqua-Chem (iii) by a wholly owned Subsidiary of the Company to the Company or any of its Subsidiaries to: wholly owned Subsidiaries), change its capitalization from that which exists on the date hereof (except as described by the foregoing exceptions), issue, sell, award or grant any rights, options or warrants to acquire its Equity Interests or any conversion rights with respect to its Equity Interests, or enter into or amend any agreements with any holder of its Equity Interests with respect to holding, voting or disposing of such Equity Interests;
(e) purchase, redeem or otherwise acquire any of its outstanding Equity Interests, except (i) incur any indebtedness for borrowed moneyby or among direct or indirect wholly owned Subsidiaries or (ii) shares of Company Common Stock that are withheld to satisfy federal withholding requirements upon vesting of Company Restricted Stock;
(f) merge or consolidate with, assumeor sell, guaranteetransfer, endorse lease, sublease or otherwise become responsible dispose of all or a substantial portion of its assets to, any other Person (other than transfers among the Acquired Companies), except for any sales, leases or dispositions of assets (i) to customers in the obligations ordinary course of business consistent with past practices or (ii) to a non-affiliated Person in an arms-length transaction for not less than fair market value and not in excess of $25,000 individually or $100,000 in the aggregate;
(g) liquidate, wind-up, dissolve or adopt any plan to liquidate, wind-up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(h) acquire or agree to acquire by merger, consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or a division thereof;
(i) sell, transfer or otherwise dispose of, or mortgage, pledge or otherwise encumber, any Equity Interests of any other individualPerson (including any Equity Interests in any Subsidiary), firm other than Permitted Liens or corporationLiens pursuant to any credit agreement to which it is a party and that is outstanding as of the date hereof;
(j) make any loans, advances or capital contributions to, or make investments in, any Person (other than (i) loans, advances or capital contributions to a wholly owned Subsidiary or loans or advances from such a Subsidiary, (ii) customer loans and advances to employees consistent with past practices or (iii) short-term investments of cash in the ordinary course of business in accordance with the cash management procedures of the Acquired Companies);
(k) terminate or amend any individualCompany Material Contract or waive or assign any of its rights under any Company Material Contract in a manner that would be materially adverse to the Company, firm or corporation, in each case enter into any Company Material Contract other than customer or vendor Contracts entered into in the ordinary course of business; ;
(iil) mortgage(i) incur or assume any Indebtedness, pledge except indebtedness incurred under any credit agreement to which it is a party and that is outstanding as of the date hereof, letters of credit, surety bonds or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than similar arrangements incurred in the ordinary course of their respective businesses; business consistent with past practices or indebtedness incurred with respect to any matter expressly permitted by this Section 5.2, or (ivii) make any investment of a capital nature either by purchase of stock or securitiesassume, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, endorse (other than endorsements of negotiable instruments in the ordinary course of their respective businesses.
business), guarantee or otherwise become liable or responsible for (whether directly, indirectly, contingently or otherwise) the liabilities, obligations or performance of any other Person, except under any credit agreement to which it is a party and that is outstanding as of the date hereof or in the ordinary course of business consistent with past practices; provided, however, that in no case shall the Company and its Subsidiaries, taken as a whole, incur or assume any Indebtedness, or assume, endorse, guarantee or otherwise become liable for any liabilities, obligations or performance, with a value in excess of $7,300,000 in the aggregate; provided, further, that in no case from the Merger Consideration Determination Date to and through the Closing Date shall the Company and its Subsidiaries, taken as a whole, incur or assume any additional Indebtedness, or assume, endorse, guarantee or otherwise become liable for any additional liabilities, obligations or performance that would result in the Company’s having, as of a time immediately prior to the Closing, an aggregate amount of (a) Funded Debt; plus (b) No change will other Company debt, if any, not including ordinary trade payables, in excess of Net Debt;
(i) during the period from the date of this Agreement to the Closing Date, except as otherwise permitted under this Agreement, enter into any additional Contracts, Benefit Plans or agreements, in each case, with employees, directors or consultants of the Acquired Companies, or make or agree to make any material changes to any existing Contracts, Benefit Plans or agreements, in each case, with employees, directors or consultants of the Acquired Companies; provided, however, that the Company may in its sole discretion and without the prior written consent of Parent amend or adopt any arrangement to cause an arrangement existing on the date hereof to comply with, or be made exempt from, Section 409A of the Internal Revenue Code if such amendment or arrangement does not cause or entail any cost or expense to Parent (other than reasonable and necessary fees and expenses of advisors in connection therewith), (ii) grant any increase in the certificates of incorporation compensation (including base salary or the by-laws of Aqua-Chem bonus) or its Subsidiaries.
benefits payable to any officer, (ciii) No change will be made except in the authorized or issued capital stock of Aqua-Chem or its Subsidiariesconnection with promotions consistent with past practices, nor will grant any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable to any non-officer or (iv) except as required to comply with applicable Law or any agreement or policy in existence as of the date of this Agreement, adopt, enter into, amend or otherwise increase, or accelerate the payment or vesting of any amounts, benefits or rights payable or accrued (or to become payable by Aqua-Chem or accrued) under any Subsidiary Benefit Plan;
(n) with respect to any shareholderformer, director present or officer.future Representative, increase any compensation or benefits payable to such Representative or enter into, amend, modify or extend any employment or consulting agreement or Benefit Plan with of for such Representative;
(fo) No contractcreate, lease incur, assume or commitment permit to exist any Lien on any of its properties or assets, except for Permitted Liens or Liens pursuant to any credit agreement to which it is a party and that is outstanding as of the date thereof;
(p) (i) make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments, (ii) settle or compromise any material Claim, action, litigation, proceeding, arbitration or investigation relating to Taxes or (iii) change in any material respect any of its methods of reporting any items for Tax purposes from those employed in the preparation of its Tax Returns for the most recent Taxable year for which a Tax Return has been filed, except as may be required by applicable Law;
(q) make or commit to make capital expenditures exceeding $250,000 in the aggregate;
(r) take any action that is reasonably likely to materially delay or impair the ability of the Company to consummate the transactions contemplated by this Agreement;
(s) enter into any new line of business material to the Acquired Companies taken as a whole;
(t) enter into any Contract that subjects or will subject the Surviving Corporation or Parent to any non-compete or similar restriction on any Acquired Company business following the Effective Time;
(u) enter into any Contract the effect of which is or will be entered intoto grant a Third Party any right or potential right of license to any material Intellectual Property of any Acquired Company;
(v) except as may be required as a result of a change in GAAP, terminated change any of the material accounting principles, estimates, or modified practices used by the Acquired Companies;
(w) compromise, settle or on behalf of Aqua-Chem grant any waiver or its Subsidiariesrelease related to any litigation or proceeding, other than contracts entered into, terminated settlements or modified compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $25,000 individually or $100,000 in the normal aggregate;
(x) engage in any transaction (other than pursuant to agreements in effect as of the date of this Agreement and that are disclosed in the Company Disclosure Letter and transactions between or among the Acquired Companies in the ordinary course of their respective business.business consistent with past practice) or enter into any agreement with any Affiliate (provided that for the purpose of this clause (x) only, the term “Affiliate” shall not include any employee of the Acquired Companies other than directors and executive officers thereof and any employees who share the same household as any such directors and executive officers); or
(gy) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts enter into any Contract or obligation with respect to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapseforegoing.
Appears in 1 contract
Sources: Merger Agreement (Integrated Electrical Services Inc)
Conduct of Business Pending Closing. Except Prior to the Closing Date, the Company will (except as permitted by the Agreement or otherwise consented to approved in writing by the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closing:Buyer or otherwise permitted under this Agreement):
(a) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts to cause Aqua-Chem and each of carry on its Subsidiaries to conduct their operations business only in the ordinary course and in a manner consistent with past practice;
(b) maintain its properties and facilities, including those held under leases, in their current good working order and condition, ordinary wear and tear excepted;
(c) not sell, lease, encumber or otherwise dispose of, or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of business and will not cause or permit Aqua-Chem or any portion of its Subsidiaries to: (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgage, pledge or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.consistent with past practice;
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their all commercially reasonable efforts to cause Aqua-Chem maintain and preserve its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and retain its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and maintain its Subsidiaries the good will of their relationships with suppliers, customers vendors, customers, creditors and others having business relations with them.it;
(e) not declare, set aside or pay any dividend or other distribution (whether in stock or property) with respect to any of its equity securities, or make any redemption, purchase or other acquisition of any of its equity securities;
(f) not issue any Membership Interests or options, warrants or other rights to purchase Membership Interests, or any securities convertible into, or exchangeable for Membership Interests;
(g) not borrow any money or incur or guarantee any indebtedness for borrowed money;
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not enter into or amend any material contracts or agreements;
(i) not amend its organizational documents, including without limitation its limited liability operating agreement;
(j) not adopt any plan or agreement of merger or liquidation;
(k) not cancel or pay any Company Debt (in any amount, but except for payments that are within the scope of Section 3.4(e) above) or waive any receivables, claims or rights in excess of US$100,000 individually or in the aggregate;
(l) not make any payments to cause any Affiliates except in the ordinary course of business pursuant to the Contract Operating Agreement referred to in Section 10.1;
(m) not make any change in its accounting methods, principles or permit practices
(n) not enter into any insurance policy presently covering Aquacommitments for capital expenditures in excess of US$250,000 (with the exception of emergency or lease-Chem obtained through LAH saving expenses, which shall be disclosed to be canceled Buyer as soon as is practicable); and
(o) not enter into any employment, consulting or terminated similar contract or agreement with any officer or director of the coverage thereunder to lapseCompany, or hire any employees.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Forest Oil Corp)
Conduct of Business Pending Closing. Except Without limiting the generality of Section 5.1, except as permitted or contemplated by the terms of this Agreement, and except as provided in the Company Disclosure Letter and the Parent Disclosure Letter (as the case may be), unless with the prior written consent of the other Parties hereto (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or otherwise consented the Effective Time, the Company and Parent shall not, and shall not permit their respective Subsidiaries, to in writing by do any of the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ the Sellers agree that pending the Closingfollowing:
(ai) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts amend its certificate or articles of incorporation, bylaws, certificate of formation, certificate of organization, limited liability company operating agreement, partnership agreement, or other governing or organizational documents, other than any action taken to cause Aqua-Chem and each facilitate the Company’s compliance with Section 3.15;
(ii) adjust, split, combine, reclassify or dispose of any of its outstanding Equity Interests;
(iii) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or Equity Interests) with respect to its Equity Interests (other than by direct or indirect wholly owned Subsidiaries);
(iv) issue or sell, or agree to issue or sell any Equity Interests, including its capital stock, change its capitalization from as it exists on the date hereof, issue, sell, award or grant any rights, options or warrants to acquire its Equity Interests or any conversion rights with respect to its Equity Interests (other than (A) pursuant to the exercise of any stock options or awards outstanding on the date of this Agreement, (B) any Equity Interest in an amount consistent with past practices to non-officer employees hired after the date hereof in the ordinary course of business consistent with past practices, not to exceed 50,000 shares in the aggregate of Parent Common Stock or Company Common Stock, as the case may be, (C) by a wholly owned Subsidiary of the Company or Parent (as the case may be) of such Subsidiary’s Equity Interest to the Company or Parent or any of their respective wholly owned Subsidiaries (as the case may be), or (D) pursuant to conduct the Company Rights Agreement or the Parent Rights Agreement in effect as of the date of this Agreement) or enter into or amend any agreements with any holder of its Equity Interests with respect to holding, voting or disposing of such Equity Interests;
(v) purchase, redeem or otherwise acquire any of its outstanding Equity Interests;
(vi) merge or consolidate with, or transfer all or a substantial portion of its assets to any other Person (other than transfers among the Acquired Companies or the Parent Companies, as the case may be), except for any sale, lease or disposition of assets (A) to customers in the ordinary course of business consistent with past practices or (B) any other arms-length transaction to a non-affiliated Person for not less than fair market value and not in excess of $5.0 million individually or $10.0 million in the aggregate;
(vii) liquidate, wind-up or dissolve or adopt any plan to liquidate, wind-up or dissolve (or suffer any liquidation or dissolution) (other than direct or indirect wholly owned Subsidiaries);
(viii) acquire or agree to acquire by merger or consolidation or otherwise (including by purchase of Equity Interests or all or substantially all of the assets) the business of any Person or division thereof;
(ix) sell, lease or sublease, transfer or otherwise dispose of any drilling rigs, marine vessels or liftboats listed in the Company’s or Parent’s (as the case may be) most recent annual report on Form 10-K that have a value in excess of $1.5 million individually, or $4.5 million in the aggregate;
(x) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any Equity Interests of any other Person (including any Equity Interests in any Subsidiary) (other than Permitted Liens);
(xi) make any loans, advances or capital contributions to, or investments in, any Person (other than (A) advances to its wholly owned Subsidiaries or from such Subsidiaries (B) customer loans and advances to employees consistent with past practices or (C) short-term investment of cash in the ordinary course of business in accordance with the cash management procedures of the Company, Parent or their operations respective Subsidiaries (as the case may be));
(xii) terminate any Material Contract or waive or assign any of its rights under any Company Material Contract or Parent Material Contract (as the case may be) in a manner that would be materially adverse to the Company or Parent (as the case may be), or enter into any Company Material Contract or Parent Material Contract (as the case may be) other than customer Contracts entered into in the ordinary course of business and will not cause or permit Aqua-Chem or any to be performed in the Gulf of its Subsidiaries to: Mexico;
(ixiii) (A) incur or assume any Indebtedness, except indebtedness for borrowed moneyincurred under their respective credit agreements outstanding as of the date hereof, letters of credit or surety bonds or similar arrangements incurred in the ordinary course of business consistent with past practices or indebtedness incurred with respect to any matter expressly permitted by this Section 5.2, or (B) assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case (other than endorsements of negotiable instruments in the ordinary course of business; (ii) mortgage), pledge guarantee or otherwise voluntarily encumber become liable or responsible (whether directly, contingently or otherwise) for the liabilities, obligations or performance of any other Person except under its credit agreements outstanding as of EXHIBIT 10.21 its properties the date hereof, or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in the ordinary course of business consistent with past practices;
(A) grant any increase in the compensation (including base salary and target bonus) or benefits payable to any officer of the Company, Parent or their respective businesses; Subsidiaries, (B) except in connection with promotions consistent with past practices, grant any increases in the compensation or benefits of non-officers of the Company, Parent or their respective Subsidiaries, or (ivC) make except as required to comply with applicable Law or any investment agreement or policy in existence as of a capital nature either by purchase the date of stock this Agreement, adopt, enter into, amend or securities, contributions to capital, property transfer or otherwiseotherwise increase, or by accelerate the purchase payment or vesting of the amounts, benefits or rights payable or accrued or to become accrued or payable under any property Company Benefit Plan or assets of Parent Benefit Plan;
(xv) with respect to former, present or future Company Representatives or Parent Representatives (as the case may be), increase any other individualcompensation or benefits or enter into, firm amend, modify or corporation, other than extend any employment or consulting agreement or Benefit Plan except in each case in the ordinary course of their respective businesses.business consistent with past practice;
(bxvi) No create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Liens;
(xvii) make or rescind any material election relating to Taxes, including any election for any and all joint ventures, partnerships, limited liability companies or other investments; settle or compromise any material claim, action, litigation, proceeding, arbitration or investigation relating to Taxes; or change will be made in any material respect any of its methods of reporting any item for Tax purposes from those employed in the certificates preparation of incorporation its Tax Returns for the most recent Taxable year for which a Tax Return has been filed, except as may be required by applicable Law;
(xviii) make or commit to make capital expenditures other than those incurred in the ordinary course of business and in an amount not to exceed $20.0 million or as may reasonably be required to conduct emergency operations on any drilling rig, liftboat or marine vessels;
(xix) take any action that is reasonably likely to materially delay or impair the ability of the Parties hereto to consummate the transactions contemplated by this Agreement;
(xx) enter into any new line of business material to it and its Subsidiaries taken as a whole;
(xxi) enter into any Contract that subjects the Surviving Company or Parent to any material non-compete or similar restriction on any Acquired Company or Parent Company business following the Effective Time;
(xxii) enter into any Contract the effect of which would be to grant a Third Party following the Merger any right or potential right of license to any material Intellectual Property of any Acquired Company or the by-laws of Aqua-Chem or its Subsidiaries.Parent Companies;
(cxxiii) No except as may be required as a result of a change will be made in GAAP, change any of the authorized material accounting principles, estimates, or issued capital stock of Aqua-Chem practices used by the Acquired Companies or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.Parent Companies;
(dxxiv) No dividend compromise, settle, grant any waiver or other distribution or payment will be declared or made in respect of the Shares.
(e) No increase will be made in the compensation or benefits payable or to become payable by Aqua-Chem or any Subsidiary release related to any shareholder, director litigation or officer.
(f) No contract, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiariesproceeding, other than contracts entered into, terminated settlements or modified compromises of such litigation or proceedings where the full amount to be paid is covered by insurance or where the amount to be paid does not exceed $5.0 million individually or $10.0 million in the normal aggregate, except for matters compromised, settled, waived or released pursuant to the MSA or TSA and for which the Company is entitled to be fully indemnified by Transocean or Transocean Holdings, Inc. pursuant to the MSA or TSA for amounts in excess of the foregoing amounts;
(xxv) engage in any transaction (other than pursuant to agreements in effect as of the date of this Agreement and are disclosed in the Company Disclosure Letter or Parent Disclosure Letter (as the case may be) and transactions between or among Parent or Company and their respective Subsidiaries in the ordinary course of business consistent with past practice) or enter into any agreement with any of their respective business.Affiliates (but for this purpose of this clause (xxv) only, the term “Affiliate” shall not include any employee of the Company, Parent or their respective Subsidiaries (as the case may be) other than directors and executive officers thereof and employees who share the same household of such directors and executive officers); or
(gxxvi) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts enter into any Contract or obligation with respect to cause Aqua-Chem and its Subsidiaries (without making any commitments on behalf of the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep available to Aqua-Chem and its Subsidiaries the services of their present officers and employees and to preserve for Aqua-Chem and its Subsidiaries the good will of their suppliers, customers and others having business relations with them.
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or any of the coverage thereunder to lapseforegoing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Todco)
Conduct of Business Pending Closing. Except Until the Closing or earlier termination of this Agreement, except as permitted may be approved by the Agreement or otherwise consented to Buyer in writing by or as otherwise expressly provided in this Agreement, the Purchaser and Newco, Mr. ▇▇▇▇▇▇ ▇▇▇ Shareholder shall cause the Sellers agree that pending the ClosingCompany to:
(a) The Sellers operate the Business only in the ordinary course and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts in substantially the same manner as it has been operated in the past and not sell any of the Assets except for sales from inventory in the ordinary course of business;
(b) not issue, repurchase or redeem or commit to cause Aqua-Chem and each issue, repurchase or redeem, any shares of its Subsidiaries capital stock, or other rights to conduct their operations acquire such stock or any securities convertible into or exchangeable for such stock;
(c) not declare or pay any dividend on, or make any other distribution with respect to, the Shares other than for purposes of retirement of Shareholder obligations to the Company, or distributions no greater than the amount allocable to a shareholder of an S corporation under Section 1366(a) of the Code for calendar year 1996 and the days of calendar year 1997 that precede the Closing Date; provided, however, that (i) cash shall not be distributed unless a sufficient amount of cash remains to satisfy the contingent liabilities of the Company, in full, and (ii) no assets, other than cash, shall be liquidated, paid or distributed;
(d) not (1) incur any additional amount of long or short-term debt for money borrowed, (2) guarantee or agree to guarantee the obligations of others, (3) indemnify or agree to indemnify others, or (4) incur any other Liabilities other than those incurred in the ordinary course of business and will not cause or permit Aqua-Chem or any of its Subsidiaries to: (i) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, in each case other than in the ordinary course of business; (ii) mortgage, pledge or otherwise voluntarily encumber any of EXHIBIT 10.21 its properties or assets; (iii) sell or transfer any of its properties or assets or cancel, release or assign any indebtedness owed to them or any claims held by them, other than in the ordinary course of their respective businesses; or (iv) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, other than in the ordinary course of their respective businesses.
(b) No change will be made in the certificates of incorporation or the by-laws of Aqua-Chem or its Subsidiaries.
(c) No change will be made in the authorized or issued capital stock of Aqua-Chem or its Subsidiaries, nor will any options, calls or commitments for or obligations convertible into or exchangeable for or giving any person any right to subscribe for or acquire any shares of such stock be issued or granted or agreed to be issued or granted.
(d) No dividend or other distribution or payment will be declared or made in respect of the Shares.consistent with past practice;
(e) No increase will be made keep in full force and effect insurance covering the compensation or benefits payable or Company, the Assets and the Business comparable in amount and scope of coverage to become payable by Aqua-Chem or any Subsidiary to any shareholder, director or officer.that now maintained;
(f) No contractmaintain the tangible Assets in their current condition and working order, lease or commitment will be entered into, terminated or modified by or on behalf of Aqua-Chem or its Subsidiaries, other than contracts entered into, terminated or modified in the normal course of their respective business.ordinary wear and tear excepted;
(g) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their its reasonable efforts to cause Aqua-Chem retain the Company's employees and its Subsidiaries (without making any commitments on behalf of maintain the Purchaser unless otherwise agreed to in advance by the Purchaser and Newco) to preserve their EXHIBIT 10.21 business organization intact, to keep Business so that such employees will remain available to Aqua-Chem the Company on and its Subsidiaries after the services of their present officers and employees Closing Date and to preserve for Aqua-Chem and its Subsidiaries the good will of their maintain existing relationships with suppliers, customers and others having business relations dealings with them.the Company and otherwise to preserve the goodwill of the Business so that such relationships and goodwill will be preserved on and after the Closing Date;
(h) The Sellers and Mr. ▇▇▇▇▇▇ ▇▇▇l use their reasonable efforts not amend its Articles of Incorporation or By-Laws;
(i) not merge with or into any other corporation or sell, assign, transfer, pledge or encumber any part of the Assets or agree to cause or permit any insurance policy presently covering Aqua-Chem obtained through LAH to be canceled or terminated or do any of the coverage thereunder foregoing;
(j) not enter into any Contract that is material, nor permit any amendment or termination of any material Contract;
(k) not waive any rights of value or rights that would otherwise accrue to lapsethe Company after the Closing Date;
(l) not increase the salaries of, or make any bonus or similar payments to or establish or modify any Employee Benefit Plans for, any of the Company's directors, officers or employees or enter into or modify any employment, consulting or similar Contracts with any such persons or agree to do any of the foregoing;
(m) continue to maintain all Employee Benefit Plans in accordance with applicable Regulations, and ensure that no Employee Benefit Plan, nor any trust related thereto, shall be amended or terminated prior to the Closing Date, except for any such amendment as may be required to comply with applicable Regulations;
(n) collect its accounts receivable in the ordinary course of business consistent with past practice;
(o) pay its accounts payable in the ordinary course of business consistent with past practice and not fail to pay or discharge when due any Liabilities;
(p) use its best efforts to help the Shareholder complete the Acquisition and obtain the satisfaction of the conditions specified in Section 9;
(q) promptly notify the Buyer of any Default, the threat or commencement of any Litigation, or any development that occurs before the Closing that could in any way materially affect the Company, the Assets or the Business;
(r) use its best efforts to obtain any consents or approvals required under any Contracts (including customer Contracts) or otherwise that are necessary to complete the Acquisition to avoid a Default under any such Contracts;
(s) comply with all Regulations applicable to it and to the conduct of its business;
(t) provide the Buyer with such financial and other reports of the Business as may be reasonably requested;
(u) not make any capital expenditures in excess of $500;
(1) give to the Buyer's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours and upon reasonable notice, all of the Assets, records, Contracts (including customer Contracts) and other documents relating to the Business, (2) permit them to consult with the officers, employees, accountants, counsel and agents of the Company for the purpose of making such investigation of the Company, the Business and the Assets and the Buyer shall desire to make, provided that such investigation shall not unreasonably interfere with the Company's business operations, and (3) make available to the Buyer all such documents and copies of documents and records and information with respect to the Company's affairs and copies of any working papers relating thereto as the Buyer shall from time to time reasonably request; and
(w) promptly disclose to the Buyer in writing any information set forth in the Disclosure Schedule hereto which no longer is correct and any information of the nature of that set forth in the Disclosure Schedule which arises after the date hereof and which would have been required to be included in the Disclosure Schedule if such information had been obtained on the date hereof.
Appears in 1 contract
Sources: Share Purchase Agreement (First American Railways Inc)