Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof and the Closing, the Company shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 6 contracts
Sources: Asset Purchase Agreement (Western Iowa Energy, L.L.C.), Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Central Iowa Energy, LLC)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Section 8.2(a) of the Seller Disclosure Letter, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser, between Seller shall, solely as relates to the date hereof Business, and the Closing, the Company shallshall cause Subsidiary to:
(i) conduct the Business and the business of Subsidiary only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts Commercially Reasonable Efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of Seller (as they relate to the Company Business or the Purchased Assets) and Subsidiary and (B) preserve the present relationships with Persons having business dealings customers and suppliers of Seller (as they relate to the Business or the Purchased Assets) and Subsidiary.
(b) Except (i) as set forth on Schedule 8.2(b) of the Seller Disclosure Letter, (ii) as required by applicable Law, (iii) as otherwise contemplated by this Agreement or (iv) with the Company prior written consent of Purchaser, Seller shall not, solely as relates to the Purchased Assets, and shall not permit Subsidiary to:
(including customers and suppliers)i) subject any of the Buisness or the Purchased Assets or any of the assets of Subsidiary, to any Lien, except for Permitted Exceptions, or subject the Purchased Shares to any Lien;
(iiiii) maintain (A) all of the acquire assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in outside the Ordinary Course of Business, Business from any other Person (B) continue except pursuant to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet an existing Agreement or inventory in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any portion of the Business or the Purchased Assets (except for fair consideration pursuant to an existing Agreement or inventory in the Ordinary Course of BusinessBusiness or for the purpose of disposing of obsolete or worthless assets) in each case, with an aggregate value in excess of the CompanyOne Hundred Thousand Dollars ($100,000);
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(viiii) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Subsidiary or Seller that constitutes a Purchased Asset except in the Ordinary Course of Business;
(viiiv) merge or consolidate with any other Person, except for any such transactions among Seller’s wholly-owned subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter intointo any agreements or arrangements imposing material changes or restrictions on its assets, modify operations or terminate businesses;
(v) declare, set aside, make or pay any labor dividend or collective bargaining agreement orother distribution, through negotiation payable in cash, stock, property or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Purchased Shares;
(vi) issue (other than on exercise of options of Seller or rights of Seller set forth in the Seller Disclosure Letter), sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any Employeeshares of its or Subsidiary’s capital stock, or securities or rights convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, including any options of Seller or rights of Seller;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of Subsidiary’s capital stock or securities convertible or exchangeable into or exercisable for any shares of Subsidiary’s capital stock;
(viii) introduce adopt or propose any change in its articles of association or other applicable governing instruments of Seller or Subsidiary that would adversely affect the Business or the Purchased Assets or Seller’s ability to perform its obligations under this Agreement;
(ix) make any material Tax election, make any change in any method of accounting for Tax purposes or make any application with any Governmental Body or seek any Tax ruling from a Governmental Body, if there is a risk that such ruling may result in any terms, restrictions, liabilities or obligations being imposed on the Business or the Purchased Assets;
(x) incur any Indebtedness for borrowed money or guarantee such Indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any of its or Subsidiary’s debt securities, except for (A) Indebtedness for borrowed money incurred in the Ordinary Course of Business consistent with past practices (x) not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate or (y) in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (B) guarantees by Seller of Indebtedness of its wholly-owned subsidiaries incurred in compliance with this Section 8.2 or (C) interest rate swaps on customary commercial terms consistent with past practice and in compliance with its risk management policies in effect on the date of this Agreement and not to exceed One Hundred Thousand Dollars ($100,000) of notional debt in the aggregate;
(xi) make any loans, advances or capital contributions to or investments in any Person (other than between itself and any of its direct or indirect wholly-owned Subsidiaries);
(xii) modify, other than in an immaterial manner, any policy or procedure with respect to the operation collection of receivables or payment of payables directly related to the BusinessBuisness or the Purchased Assets;
(xiii) pay, including discharge or satisfy before it is due any material change claim or Liability directly related to the Buisness or the Purchased Assets or fail to pay any such item in a timely manner directly related to the typesBusiness or the Purchased Assets, naturein each case except in accordance with the Ordinary Course of Business;
(xiv) make any changes with respect to accounting policies or procedures that adversely affects the Buisness or the Purchased Assets, composition or quality of products or services, or, other than except as required by changes in applicable generally accepted accounting principles;
(xv) except in the Ordinary Course of Business, make amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any change in product specifications Seller Material Agreement or prices any material Permit that adversely affects the Business or terms of distributions of such productsthe Purchased Assets;
(ixxvi) enter into except in the Ordinary Course of Business, exercise any transaction right or enter into, modify option under or extend or renew any Contract which by reason Seller Material Agreement that adversely affects the Business or the Purchased Assets;
(xvii) except in the Ordinary Course of Business enter into or engage in any transaction with its size Affiliates that adversely affects the Business or otherwise is not the Purchased Assets;
(xviii) pay any management charge to Seller or any entity other than Subsidiary;
(xix) take any action that would reasonably be expected to result in a material increase in Tax liability (or a corresponding loss of Tax attributes) relating to the Business or the Purchased Assets other than in the Ordinary Course of Business;
(xxx) enter into any Contractagree, understanding commit or commitment that restrains, restricts, limits offer (in writing or impedes the ability of the Business, or the ability of Newco or Purchaser, otherwise) to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties actions described in clauses “(i)” through “(xix)” of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanySection 8.2(b).
Appears in 5 contracts
Sources: Asset Purchase Agreement (Ophthalmic Imaging Systems), Asset Purchase Agreement (Ophthalmic Imaging Systems), Asset Purchase Agreement (Ophthalmic Imaging Systems)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 6.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement Agreement, (iv) for any transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, or (v) with the prior written consent of Newco, between the date hereof and the ClosingParent, the Company shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) , and shall cause its Subsidiaries to, use its commercially reasonable efforts to (Ax) preserve conduct the present business operations, organization (including officers and Employees) and goodwill respective businesses of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) its Subsidiaries in all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company material respects in the Ordinary Course of Business, (By) continue to collect accounts receivable preserve their relationships, in all material respects, with customers, suppliers, distributors, licensors, licensees, lessors and pay accounts payable others Persons having business dealings with the Company or its Subsidiaries and other Liabilities set forth on the Balance Sheet (z) make capital expenditures in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply in accordance with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanyCapEx Budget.
(b) Without limiting the generality of the foregoing, except (i) as set forth on Schedule 6.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement Agreement, (iv) for any transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, or (v) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to:
(i) issue or sell, or authorize the issuance or sale of, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries (other than any issuances pursuant to Options and RSUs outstanding on the date hereof under the Equity Incentive Plan or the Exchangeable Notes), or any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries;
(ii) purchase or redeem any shares of capital stock or other equity interests of the Company or its Subsidiaries, or effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of its Subsidiaries;
(iii) amend in any material respect the certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries;
(iv) (A) grant any increase in the base salaries or wages payable or bonus opportunities or employee benefits provided to any Company Employees or current directors or individual independent contractors, except for base salary or wage increases for Company Employees (other compensation of any director than directors or Employee of the Company except for normal year-end increases executive officers) (x) in the Ordinary Course of Business, (By) grant any bonusas required under contractual arrangements in effect as of the date of this Agreement, benefit or other direct (z) in the Ordinary Course of Business in connection with the progression or indirect compensation to any promotion of a Company Employee that does not have a title of “Senior Vice President” or directorhigher or otherwise does not have a total annual base salary in excess of $275,000 (for such Company Employees based in the United States or China) or €275,000 (for such Company Employees based in Europe)); provided, that in the case of clause (x), such increases do not exceed, in the aggregate, on a Company-wide basis, three percent (3%) of the aggregate Company expense for base salaries and wages as of the date hereof, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DB) enter into any employment, deferred compensation, stay bonus, severance, special payretention, consulting, non-competition change of control or similar agreement or arrangement with any Company Employees or current directors or officers of the Company individual independent contractors, (C) establish, adopt, enter into, amend or amend terminate any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash Collective Agreement or other property with respect collective bargaining agreement or Company Benefit Plan, except for amendments to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred Company Benefit Plans in the Ordinary Course of Business since that (x) are entered into in connection with open enrollment for the Balance Sheet Datecurrent plan year or (y) do not materially increase the cost to the Company, in the aggregate, of maintaining such Company Benefit Plan, (D) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of the Company Employees or current directors or individual independent contractors, (zE) terminate the Indebtedness set forth on employment of any Company Disclosure Schedule 4.5; Employee with the title of “Senior Vice President” or higher and having a total annual base salary in excess of $225,000 (Bfor such Company Employees based in the United States or China) or €300,000 (for such Company Employees based in Europe), other than for cause (determined in the Company’s sole discretion), or carry out any mass redundancy (Massenentlassung), in each case, except as required by applicable Law or under any Company Benefit Plan in effect as of the date of this Agreement;
(v) hire any new employees, unless such hiring is in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase Business consistent with past practice with respect to employees with an annual base salary not to exceed $225,000 (for potential new employees based in the United States or satisfy any Indebtedness issued China) or guaranteed by the Company; €300,000 (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personfor potential new employees based in Europe);
(iiivi) subject to any Lien any of the properties (including the Real Property) or otherwise encumber orassets (whether tangible or intangible) of the Company or any of its Subsidiaries, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivvii) become legally committed to make any capital expenditures, except (A) for any capital expenditures pursuant to projects for which work has already been commenced or committed or is otherwise contemplated in the CapEx Budget, (B) for any capital expenditures that are less than $1,000,000, individually, or that are in the aggregate, less than $5,000,000, when aggregated with all other capital expenditures pursuant to this clause (B), or (C) for any capital expenditure related to a Force Majeure;
(viii) acquire the equity securities or substantially all of the assets of any material properties entity (whether directly or assets indirectly and whether by merger, acquisition of securities or assets, reorganization, recapitalization or otherwise);
(ix) (A) incur, create, refinance, replace, cancel, prepay, guarantee, or assume any indebtedness (including guarantees) in an aggregate amount in excess of $5,000,000 in the aggregate or (B) enter into any hedging, swap or similar arrangements, in each case, outside of the Ordinary Course of Business;
(x) sell, assign, license, transfer, convey, lease lease, sublease or otherwise dispose of any of material properties (including the Purchased Assets (except for fair consideration in the Ordinary Course of BusinessReal Property) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right assets of the Company or any of its Subsidiaries except in the Ordinary Course of Business;
(viixi) enter into(A) make or rescind any material election relating to Taxes, modify (B) settle or terminate compromise any labor material Tax liability, (C) adopt or collective bargaining agreement orchange any material method of Tax accounting, through negotiation or otherwise(D) materially amend any Tax Return, make any commitment or incur any Liability to any labor organization with respect to any Employeein each case other than in the Ordinary Course of Business;
(viiixii) introduce any material change with respect to the operation of the Business, including make any material change in the typesCompany’s or its Subsidiaries’ respective accounting methods, natureexcept as required by GAAP;
(xiii) enter into or amend any Affiliate Contracts, composition or quality enter into any transactions with Affiliates, except in the Ordinary Course of products Business, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xiv) modify, amend or servicesterminate, orwaive or assign any material rights under any Material Contract or Lease, or enter into any new Contract that would be a Material Contract or Lease, in each case other than in the Ordinary Course of Business;
(xv) adversely modify, amend, or terminate any material Permits, including Environmental Permits, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxvi) enter into adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or major changes of business operation;
(xvii) set aside, make or pay any transaction dividend or enter intoother distribution, modify payable in cash, stock, property or renew otherwise, with respect to any Contract which by reason of its size the Company’s capital stock;
(xviii) cancel, compromise or otherwise is not settle any Proceeding, except (A) in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permitwhere the amount paid in settlement or compromise is less than $1,000,000 individually or $5,000,000 in the aggregate;
(xiixix) settle waive in writing any material right of the Company or any of its Subsidiaries, including any material write-off or compromise any pending or threatened Legal Proceeding or any claim or claims forof accounts receivable, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementBusiness; or
(xviixx) authorize any of, or commit or agree to do do, anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 3 contracts
Sources: Merger Agreement (Novelis Inc.), Merger Agreement (Aleris Corp), Merger Agreement (Novelis Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoParent, between the date hereof and the Closing, the Company shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoParent, the Company shall not:
(i) (A) increase the salary or other compensation of any director manager or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or directormanager, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directorsmanagers, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors managers or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.54.6; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; or (E) pay or make any dividend or distribution of cash or other property with respect to the Company Units or other equity securities of the Company;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Company Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Company Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in by Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contractcontract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco Parent or PurchaserMergerLLC, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts provided therein as are in effect on the date of this Agreement and upon such other terms as are in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 3 contracts
Sources: Merger Agreement (Blackhawk Biofuels, LLC), Agreement and Plan of Merger (Blackhawk Biofuels, LLC), Agreement and Plan of Merger (Blackhawk Biofuels, LLC)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall use their best efforts, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 3 contracts
Sources: Stock Purchase Agreement (IBC Equity Holdings), Stock Purchase Agreement (CP US Income Group, LLC), Stock Purchase Agreement (Zysblat Robert)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing and further to any obligations as debtors-in-possession under the Bankruptcy Code and except (1) as set forth on Schedule 8.2(a), (2) as required by applicable Law, (3) as otherwise expressly provided contemplated by this Agreement or (4) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company Sellers shall:
(i) use commercially reasonable efforts to maintain the Purchased Assets in the Ordinary Course of Business, pay expenses and payables, ▇▇▇▇ customers, collect receivables, purchase Inventory, repair and continue normal maintenance (normal wear and tear excepted) and otherwise conduct the Business only in the Ordinary Course of Business;
(ii) (A) comply in all material respects with all Laws and Assumed Contracts and Assumed Executory Contracts, (B) maintain all existing Permits applicable to the Business, and (C) pay all applicable Taxes as such Taxes become due and payable;
(iii) Use commercially reasonable efforts to maintain working capital and current asset and current liability levels consistent with those reflected in the Sellers’ financial statements previously provided to Purchaser;
(iv) maintain in full force and effect all Purchased Intellectual Property;
(v) utilize commercially reasonable efforts to pursue Section 363 of the Bankruptcy Code sales processes and to comply at all times with the Plan and the Confirmation Order;
(vi) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Business; and
(vii) promptly inform Purchaser in writing of the occurrence or non-occurrence of any event known to any Seller which would cause the condition set forth in Section 10.1(a) not to be satisfied or the breach of any covenant hereunder by any Seller.
(b) Subject to any obligations as debtors-in-possession under the Bankruptcy Code and except (1) as set forth on Schedule 8.2(b), (2) as required by applicable Law, (3) as otherwise contemplated by this Agreement or (4) with the Company prior written consent of Purchaser, no Seller shall solely as it relates to the Business:
(including customers and suppliersi) modify or amend, in any material respect, or terminate any Material Contract or waive, release or assign any material rights or claims thereunder;
(ii) enter into any contract or transaction relating to the purchase of assets primarily for use in the Business in excess of fifty thousand dollars ($50,000);
(iii) maintain (A) all increase salaries or wages, declare bonuses, increase compensation or benefits or institute any new employment arrangement, benefit plan or program with respect to any Employee, except as required by law, as required by the terms of the assets and properties of, previously existing Employee Plans or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and except that Sellers can declare or pay accounts payable and other Liabilities set forth on bonuses or enter into deferred compensation or similar arrangements in connection with the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations retention of the Companycontinued services of directors, employees or consultants;
(viv) comply with the capital expenditure plan sell, lease, transfer, mortgage, encumber, alienate or dispose of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company Purchased Assets except for normal year-end increases sales of Inventory in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;and
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.28.2.
(c) Prior to the Closing, (B) that would make each of the Sellers shall take any and all necessary actions to transfer, assign, record or perfect in its name record title to any of its Purchased Assets that is not presently held or recorded in its name, including, without limitation, filing any necessary notices of assignment in the representations United States Patent and warranties of the Company in this Agreement Trademark Office or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect United States Copyright Office, as applicable, with respect to the CompanyPurchased Intellectual Property.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New Century Energy Corp.), Asset Purchase Agreement (New Century Energy Corp.)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as required by applicable Law, (II) as otherwise expressly provided contemplated by this Agreement or (III) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned, unless the date hereof and action to be taken by the ClosingCompany would be reasonably expected to have a Material Adverse Effect), the Company shall, and shall cause the Subsidiaries to:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Company and the Subsidiaries; and
(iii) willfully do any other act which, or fail to take any reasonable action which failure, would cause any representation or warranty of the Company or any Seller in this Agreement (without giving effect to any materiality limitations set forth therein) to become untrue in any material respect.
(b) Without limiting Section 8.2(a) above, except (I) as required by applicable Law, (II) as otherwise contemplated by this Agreement or (III) with the prior written consent of Purchaser, prior to the Closing, the Company shall not, and shall not permit the Subsidiaries to:
(including customers and suppliers)i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other Equity Securities of, or other ownership interests in, the Company or any of the Subsidiaries;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other Equity Securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other Equity Securities of the Company or any of the Subsidiaries;
(iii) maintain (A) all of effect any recapitalization, reclassification or like change in the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties capitalization of the Company in such amounts and or any of such kinds comparable to that in effect on the date of this AgreementSubsidiaries;
(iv) except as provided in Section 8.15, amend the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of the Subsidiaries;
(v) (A) maintain increase the books, accounts and records annual level of compensation of any director or executive officer of the Company or any of the Subsidiaries, (B) other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on materially increase the Balance Sheet in the Ordinary Course annual level of Business utilizing normal procedures and without discounting compensation of any Employee who is not a director or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditexecutive officer, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (CD) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Company Benefit Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; party or (E) pay involving a director or make any dividend or distribution of cash or other property with respect to the units or other equity interests executive officer of the Company;
(ii) (A) createCompany or any of the Subsidiaries, incurexcept, assumein each case, guarantee, endorse as required by applicable Law from time to time in effect or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans;
(iiivi) subject to any Lien Lien, any of the Assets of the Company or otherwise encumber orany of the Subsidiaries, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased material properties or Assets of the Company and the Subsidiaries (except for fair consideration sales of inventory in the Ordinary Course of Business) of the Company);
(vviii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in or any of the Ordinary Course of BusinessSubsidiaries;
(viiix) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of $100,000 for any individual commitment and $250,000 for all commitments in the aggregate other than (a) such commitments for capital expenditures that are fully paid prior to Closing or (b) such commitments in respect of capital expenditures included in the CapEx Budget;
(x) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation of the Company or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeeof the Subsidiaries;
(viiixi) introduce permit the Company or any of the Subsidiaries to acquire by merger or consolidation with, or merge or consolidate with, or purchase all or substantially all of the Assets of, or otherwise acquire any material Assets or business of, any Person, business, business unit, division or facility;
(xii) change with respect to the operation any of the BusinessCompany’s or any of its Subsidiaries’ accounting methods, principles or practices unless required by GAAP;
(xiii) revalue any of the Assets, including any material change in the types, nature, composition writing off receivables or quality of products or services, orreserves, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiv) enter into any transaction or enter into, modify extend, materially and adversely modify, or renew terminate any Contract which by reason of its size Material Contract, other than customer or otherwise is not supplier contracts in the Ordinary Course of Business;
(xxv) enter into (A) sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any Contractmaterial Assets or any interests therein other than to secure Indebtedness, understanding except for sales of finished goods inventory or commitment that restrainsobsolete Assets in the ordinary course of business consistent with past practice or (B) sell, restricts, limits assign or impedes the ability transfer any Assets to any of the Business, Sellers or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personstheir Affiliates;
(xixvi) terminatefail to expend funds for capital expenditures or commitments in accordance with the CapEx Budget;
(xvii) make any material loans or advances to any Person, amendor, restateexcept for expenses incurred in the Ordinary Course of Business, supplement to any employee of the Company or waive any rights under any of its Subsidiaries;
(Axviii) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, collect accounts receivable and pay accounts payable other than in the Ordinary Course of Business or (B) PermitBusiness;
(xiixix) fail to maintain the material Assets of the Company and each of its Subsidiaries in substantially their current state of repair, excepting normal wear and tear;
(xx) amend any Tax Return, make or rescind any material election relating to Taxes, settle or compromise any pending claim, action, suit, litigation, proceeding, arbitration, investigation, audit or threatened Legal Proceeding controversy relating to Taxes, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recent Tax Return or consent to any extension or waiver of the limitation period applicable to any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected assessment relating to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementTaxes; or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.
Appears in 2 contracts
Sources: Stock Purchase Agreement (UCI Holdco, Inc.), Stock Purchase Agreement (United Components Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Seller Schedule 7.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), between Seller shall, solely as it relates to the date hereof and the Closing, the Company shallBusiness:
(i) conduct the Business only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Seller and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);suppliers of Seller.
(b) Except (i) as set forth on Seller Schedule 7.2, (ii) as required by applicable Law, (iii) maintain (A) all of the assets and properties of, as otherwise contemplated by this Agreement or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) with the prior written consent of Purchaser (Awhich consent shall not be unreasonably withheld or delayed), Seller shall not, solely as it relates to the Business:
(i) maintain the books, accounts and records of the Company other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation Employee Benefit Plan for disability, sick leave, deferred compensation, bonus the Employees or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) with an Employee, except, in each case, as required by applicable Law from time to which the Company is a party; time in effect or (E) pay or make by any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee Benefit Plans;
(ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns;
(iii) subject any of the Purchased Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets that would constitute Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets);
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Person, and not engage corporation or other entity that would result in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any PersonMaterial Adverse Effect;
(vi) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Seller that constitutes a Purchased Asset except in the Ordinary Course of Business;
(vii) enter into any commitment for capital expenditures in excess of $10,000 for any individual commitment and $50,000 for all commitments in the aggregate;
(viii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementorganization; or
(xviiix) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Attis Industries Inc.), Asset Purchase Agreement (Attis Industries Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or with the prior written Closing unless the Investors otherwise consents in writing (which consent of Newcoshall not be unreasonably withheld, between the date hereof and the Closing, conditioned or delayed) the Company shall:
, and shall cause each of its Subsidiaries to, (i) conduct the Business its business only in the Ordinary Course of Business;
ordinary course and consistent with past practice; (ii) use commercially reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its commercially reasonable best efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the material assets and properties of, it owns or used by, uses in the Company ordinary course of business consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
; (iv) (A) maintain use its commercially reasonable best efforts to preserve the books, accounts goodwill and records ongoing operations of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
its business; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures maintain its books and records in the amounts usual, regular and at the times set forth in such plan;
ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance . Notwithstanding the forgoing and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided contemplated by this Agreement or with the prior written Transaction Agreements or as consented to by the Investors in writing (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of Newcothis Agreement through and including the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) (i) (A) increase split, combine or reclassify any of its capital stock or issue or authorize the salary or other compensation issuance of any director other securities in respect of, in lieu of or Employee in substitution for shares of its capital stock, or (ii) purchase, redeem or otherwise acquire any capital stock in the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directorsSubsidiaries or any other securities thereof or any rights, officers, Employees, agents warrants or representatives of the Company or otherwise modify or amend or terminate options to acquire any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash shares or other property with respect securities, except in the ordinary course of business pursuant to the units or other equity interests of the Company's employee benefit plans;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(vb) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except set forth in the Ordinary Course disclosure letter of Business;
(vii) enter intoeven date herewith, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties that is reasonably likely to consummate the transactions contemplated by this Agreement;
result in (xvi) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company set forth in this Agreement Article IV becoming false or any of the Company Documents untrue or incorrect inaccurate in any material respect as of, or could result in at any time prior to, the Closing Date or (ii) any of the conditions to the Closing obligations of each Investor set forth in Section 7.2 not being satisfied satisfied;
(c) amend the charter, bylaws or other comparable organizational documents of the Company in a manner likely to adversely affect any Investor; or
(Cd) that could agree to take, any of the foregoing actions. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be reasonably expected prevented from, or obligated to have a Material Adverse Effect obtain the consent of the Investors prior to, (i) issuing shares of its capital stock or entering into agreements with respect thereto, including with respect to the Companyregistration rights, or (ii) engaging in any merger, acquisition or business combination transaction.
Appears in 2 contracts
Sources: Investment Agreement (Global Signal Inc), Investment Agreement (Fortress Investment Holdings LLC)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall, and shall cause the Company shall:and its Subsidiaries to,
(i) conduct the Business business of the Company and its Subsidiaries only in the Ordinary Course of Business;
(ii) ordinary course consistent with past practice and to use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and Company, (B) preserve the its present relationships relationship with Persons having business dealings with the Company and its Subsidiaries, and (including customers and suppliers);
(iiiC) maintain (A) all of the assets and properties of, or used by, the Company Properties and all buildings, structures, fixtures and improvements thereon in the same condition as they exist on the date hereof, ordinary wear and tear excepted, in each case consistent with past practice, and ;
(Bii) insurance upon all of use commercially reasonable efforts to maintain the assets and properties of the Company and its Subsidiaries in such amounts customary repair, order and of such kinds condition, maintain insurance reasonably comparable to that in effect on the date Balance Sheet Date and, in the event of this Agreement;
(iv) (A) maintain a casualty, loss or damage to any of such assets prior to the books, accounts and records of Closing Date for which the Company in and its Subsidiaries is the Ordinary Course beneficiary of Businessinsurance or the condemnation of any such assets, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on either repair or replace such assets or, if the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting Purchaser agrees, retain such insurance or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapsecondemnation proceeds; and
(viiiiii) pay all maintenance if, to the Seller's best knowledge, any material variances from the representations and similar fees and take all other appropriate actions as necessary to prevent warranties contained in Article IV arise or occur, promptly inform the abandonment, loss or impairment Purchaser of all Intellectual Property of the Companyany such material variances.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company and each of its Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company and its Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company and its Subsidiaries;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company and its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company and its Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company and its Subsidiaries;
(iv) amend the articles of incorporation or by-laws of the Company and its Subsidiaries;
(A) grant any increase in the salary or other compensation of any director of the directors, officers, or Employee Key Employees of the Company except for normal year-end increases or any of its Subsidiaries or make any general uniform increase in the Ordinary Course compensation of Businessthe employees of the Company or any of its Subsidiaries outside the ordinary course of business consistent with past practice, (B) grant any extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant of the Company or any of its Subsidiaries, or (C) increase the coverage or benefits available under enter into any (or create any new) severance payseverance, termination paytermination, vacation pay, company awards, salary continuation for disability, sick leaveretention, deferred compensation, bonus or other incentive compensation, insuranceprofit sharing, pension stock option, stock appreciation right, restricted stock, stock equivalent, stock purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan or arrangement made to, for, or with any for the benefit of the officers, directors, officers, Employees, agents or representatives and/or employees of the Company or otherwise modify or amend or terminate any such plan or arrangement of its Subsidiaries;
(Dvi) enter into any employmentexcept for trade payables and under lines of credit existing on the date hereof, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units Company or other equity interests any of its Subsidiaries, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the Company;
(ii) (A) createguarantor, incursurety, assume, guarantee, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) except under lines of credit existing on the date hereof, and consistent with past practice, subject any of the properties or assets of the Company and its Subsidiaries to any Lien or otherwise encumber or, except for (other than Permitted Exceptions);
(viii) purchase, permitsell, allow lease, transfer or suffer to be subjected to any Lien or otherwise encumbered, assign any of the Purchased Assets;
Company's and its Subsidiaries' assets, tangible or intangible, involving more than $100,000 for any single purchase, sale, lease, transfer or assignment (ivor agreement related to the foregoing) acquire any material properties or assets $500,000 for a series of such related purchases, sales leases, transfers or sell, assign, license, transfer, convey, lease assignments (or otherwise dispose of any of agreement related to the Purchased Assets foregoing) except (except A) for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (B) dispositions of assets no longer useful to the conduct of the business of the Company and its Subsidiaries, consistent with past practice, and (C) dispositions (other than as part of an engine overhaul or repair) of inventory covered by the Company's slow-moving inventory reserve in an amount not resulting in aggregate sale proceeds in excess of $300,000;
(vix) cancel or compromise any material debt or claim or waive or release any material right of the Company or its Subsidiaries except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice;
(x) with respect to the Company or any of its Subsidiaries, enter into any commitment for capital expenditures in excess of $100,000 for any individual commitment and $250,000 for all commitments in the aggregate;
(A) enter into any employment contract (pursuant to which the Company or any of its Subsidiaries may reasonably be expected to make payment in excess of $50,000 in any twelve month period) or (B) enter into any labor or collective bargaining agreement, oral or written, or make any material modification of the terms of any existing such contract or agreement, or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to, or materially reduce the workforce of, the Company and its Subsidiaries;
(xii) with respect to the Company or any of its Subsidiaries, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change with respect to the Company or any of its Subsidiaries, and except for transfers of cash pursuant to normal cash management practices, make any investments in or loans to, or except in accordance with past practices, pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Seller;
(xiv) take with respect to the Company or any action which would adversely of its Subsidiaries, make or change any election concerning Taxes or Tax Returns, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settled any Tax claim or assessment or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling, agreement, contract, understanding, arrangement or plan, in each case that will be binding on or affect the ability Purchaser, the Company or any of its Subsidiaries for any period after the parties to consummate the transactions contemplated by this AgreementClosing Date;
(xv) amend with respect to the operating agreement Company or any of its Subsidiaries, enter into any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $50,000 except those entered into in the Companyordinary course of business consistent with past practice;
(xvi) agree with respect to materially increase Liabilities from the amounts set forth on the Balance Sheet Company or any of its Subsidiaries, accelerate, terminate, modify or cancel any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $50,000 except in the Ordinary Course ordinary course of Business under loan or credit agreements or arrangements up business consistent with past practice;
(xvii) with respect to the maximum amounts Company or any of its Subsidiaries, (A) make any capital investment in, any loan to, or any acquisition of the securities of another Person (or series of related capital investments, loans and acquisitions) involving more than $50,000 except in the ordinary course of business consistent with past practice or (B) make any pledge to make such a capital contribution;
(xviii) with respect to the Company or any of its Subsidiaries, grant a license or sublicense of any rights under or with respect to any intellectual property;
(xix) make any loan to, or enter into any transaction with, any of the directors, officers, or employees of the Company or any of its Subsidiaries outside the ordinary course of business;
(xx) make any other material change in employment terms as in effect on for any of the date directors or officers of this Agreementthe Company or any of its Subsidiaries or the Key Employees; or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (First Aviation Services Inc), Stock Purchase Agreement (First Aviation Services Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, between from the date hereof and until the ClosingClosing Date, the Seller will (and will cause the Company shall:to):
(ia) conduct operate the Business only in the Ordinary Course of Business to the best of their ability and not engage in any transaction outside of the Ordinary Course of Business;
(iib) provide the Purchaser with unaudited consolidated balance sheets of the Seller and its subsidiaries as of the last day of each month between the Effective Date and the Closing, and the related unaudited statements of operations, cash flows and members’ equity for the year-to-date period then ended, no later than thirty (30) days after the end of each such month;
(c) use its commercially reasonable efforts to (A) preserve the present business operationsBusiness, organization (including officers to keep available the services of key employees and Employees) and to preserve for the Business the goodwill of the Company its suppliers, franchisees, customers and (B) preserve the present relationships with Persons others having business dealings relations with the Company (including customers and suppliers)Company;
(iiid) maintain (A) all proper and adequate staffing levels in accordance with Law and historical methods of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementoperation;
(ive) maintain product prices;
(Af) maintain the books, accounts books and records of the Company in the Ordinary Course usual, regular and ordinary manner;
(g) maintain in full force and effect all Permits and not sell, transfer, license or otherwise dispose of Business, any material rights or interests under any Permits;
(Bh) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on operate the Balance Sheet Business in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply compliance with all contractual applicable Permits and other obligations all applicable Laws, including all local licensing requirements and local health and fire regulations;
(i) keep all of the Company’s assets of insurable character insured in accordance with industry custom and consistent with past practice;
(j) consult with the Purchaser regarding all material developments, transactions and proposals relating to the Business or the Company;
(k) promptly notify the Purchaser of (i) any Material Adverse Change, (ii) any physical inventory discrepancy in excess of $10,000 relating to the Business, (iii) any theft, condemnation or eminent domain proceeding or material damage, destruction or casualty loss affecting any asset or property of the Company, whether or not covered by insurance, (iv) any breach or default (or event that with notice or lapse of time would constitute a breach or default), acceleration, termination (or threatened termination), modification or cancellation of any Company Contract by any party (including by the Company), (v) comply with the capital expenditure plan termination of employment (whether voluntary or involuntary) of any officer or key employee of the Business or the termination of employment (whether voluntary of involuntary) of employees of the Business materially in excess of historical attrition in personnel, (vi) any Legal Proceeding commenced by or against the Company for 2009 set forth on and (vii) any Legal Proceeding commenced, or threatened against, the Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in or the amounts and at Seller relating to the times set forth in such plantransactions contemplated by this Agreement;
(vil) comply in all material respects with all applicable Lawsnot enter into any Company Contract that (i) is not terminable upon thirty (30) days or less notice or (ii) involves the payment or receipt by the Company of more than $25,000;
(viim) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate (other than by reason of the expiration thereof) any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeethe Company;
(viiin) introduce not incur or become subject to, or agree to incur or become subject to, any material change with respect to the operation Liability of the Business, Company except (i) normal trade or business obligations (including any material change in the types, nature, composition or quality of products or services, or, other than Company Contracts) incurred in the Ordinary Course of Business, make any change Business and (ii) obligations under Company Contracts in product specifications or prices or terms of distributions of such productseffect on the date hereof;
(ixo) not, without fair consideration, cancel or compromise any material Liability or Claim of the Company or waive or release any material right related to the Business or the Company’s assets;
(p) not breach or default (or take any action that with notice or lapse of time would constitute a breach or default), accelerate, terminate (or threaten termination), cancel or amend any Company Contract;
(q) not change accounting principles or methods or cash management practices (including the collection of receivables, payment of payables, maintenance of inventory control and pricing and credit practices) of the Company, except as required by Section 4.1(r), by law or as a result of any mandatory change in accounting standards;
(r) expense (and not capitalize) all purchases of equipment, supplies and fixtures (except where the size of the purchase requires it to be capitalized pursuant to GAAP and notice of such treatment is provided to the Purchaser prior to such purchase) of the Company;
(s) not make any Tax election or settle or compromise any Tax liability with respect to the Company;
(t) not make any loans, advances or capital contributions from the Company to, or investments by the Company in, any other Person;
(u) not engage in any transactions between the Company and any Related Party;
(v) not increase the aggregate compensation payable or to become payable to any person, including employees, consultants and members of the Company, inconsistent with the past practices of the Company;
(w) not pay any dividends, bonuses or other cash or property to any person, including employees, consultants and members of the Company, inconsistent with the past practices of the Company;
(x) not (i) increase the coverage or benefits available under (or create any new or otherwise amend) any Employee Benefit Plan or Benefit Arrangement or (ii) enter into any transaction employment, deferred compensation, severance, consulting, non-competition, employee retention plan or enter intosimilar agreement (or amend any such existing plan or agreement) involving a director, modify officer or renew employee of the Company in the capacity of director, officer or employee of the Company (other than employment terminable at will without penalty or as required to satisfy the condition set forth in Section 5.7);
(y) not terminate the employment of any Contract which by reason officer or key employee of its size the Business or otherwise is terminate the employment of employees of the Business materially in excess of historical attrition in personnel;
(z) not subject any of the Company’s assets to any Encumbrance;
(aa) not make any payment or transfer of assets (including without limitation any repayment of indebtedness) of the Company to or for the benefit of any Related Party, other than compensation and expense reimbursements paid in the Ordinary Course of Business;
(xbb) enter into any Contractnot transfer, understanding issue, sell or commitment that restrainsdispose of shares of capital stock, restricts, limits units of ownership or impedes the ability other securities of the BusinessCompany or grant options, warrants, calls or the ability of Newco other rights to purchase or Purchaser, to compete with otherwise acquire such capital stock or conduct any business or line of business in any geographic area or solicit the employment of any personsother securities;
(xicc) terminatenot consolidate with, amendor merge with or into, restate, supplement or waive any rights under any Person;
(Add) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than not acquire (except for purchases of inventory in the Ordinary Course of Business Business) any Company assets and not sell, assign, transfer, convey, lease or (B) Permit;
(xii) settle or compromise otherwise dispose of any pending or threatened Legal Proceeding or any claim or claims forof the Company’s assets, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment reflected in the Financial Statements (except for sales of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except inventory for fair consideration in the Ordinary Course of Business under loan Business);
(ee) not take any action that would cause any representation or credit agreements or arrangements up warranty set forth in Article II to the maximum amounts be untrue and other terms incorrect as in effect on of the date when made or (except in the case of this Agreementrepresentations and warranties made as of a specific date) as of any future date; orand
(xviiff) not agree to (i) do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied 4.1 or (Cii) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrefrain from doing anything required by this Section 4.1.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Argyle Security, Inc.), Unit Purchase Agreement (Argyle Security, Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoBuyer, between the date hereof and the Closing, Sellers and the Company and each of the Subsidiaries shall:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries and (B) preserve the present relationships with Persons having business dealings with the Company and the Subsidiaries (including customers clients, customers, suppliers and suppliersservice providers);
(iii) use commercially reasonable efforts to ensure that each Contract entered into after the date of this Agreement will not require the procurement of any consent, waiver or novation or provide for any material change in the obligations of any party hereto in connection with, or terminate as a result of the consummation of, the transactions contemplated hereby, and give reasonable advance notice to Buyer before allowing any Material Contract or material right thereunder to lapse or terminate by its terms;
(iv) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(ivv) (A) maintain the books, accounts and records of the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the Company;
Company and the Subsidiaries, and (vD) comply make each insurance claim in relation to the Company and the Subsidiaries promptly and in accordance with the capital expenditure plan requirements of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)relevant policy, including making such capital expenditures except if Buyer agrees otherwise in the amounts and at the times set forth in such plan;writing; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement on Schedule 6.2(b) or with the prior written consent of NewcoBuyer, the Company and the Subsidiaries shall not:
(i) (A) increase the salary issue any notes, bonds or other compensation of debt securities or any director capital stock or Employee of the Company other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities;
(ii) borrow any amount or incur or become subject to any material Liabilities, except for normal year-end increases current Liabilities incurred in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any advances on existing revolving lines of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred credit in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter and Liabilities under Contracts entered into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(viiiii) enter intodischarge or satisfy any material Lien, modify pay any material Liability or terminate waive or release any labor material right of any of the Company or collective bargaining agreement or, through negotiation the Subsidiaries other than current Liabilities paid in the Ordinary Course of Business;
(iv) declare or otherwise, make any commitment payment or incur any Liability distribution of cash or other property to any labor organization its shareholders with respect to its capital stock or other equity securities or purchase, redeem or otherwise acquire, directly or indirectly, any Employeeshares of its capital stock or other equity securities (including, without limitation, any warrants, options or other rights to acquire its capital stock or other equity securities);
(viiiv) introduce mortgage or pledge any of its properties or assets or subject them to any material change with respect to the operation Lien, except Liens for current property Taxes not yet due and payable;
(vi) sell, assign or transfer any of the Businessits tangible assets, including any material change in the types, nature, composition or quality of products or services, or, other than except in the Ordinary Course of Business, make or cancel any change in product specifications material debts or prices or terms of distributions of such productsclaims;
(ixvii) enter into acquire, license, disclose, sell, assign or transfer any transaction Intellectual Property rights, or enter intodisclose any material Confidential Information to any Person without obtaining an agreement, modify in usual and customary form and substance, from such Person protecting the confidentiality of such Confidential Information;
(viii) suffer any extraordinary losses or renew waive any Contract which by reason rights of its size material value, whether or otherwise is not in the Ordinary Course of Business;
(ix) make any single capital expenditure or commitment in excess of 10,000 or capital expenditures or commitments that aggregate in excess of $20,000;
(x) enter into make any Contractloans or advances, understanding or commitment that restrainsincluding recruiting inducements, restrictsto, limits or impedes guarantees for the ability of the Businessbenefit of, or the ability of Newco or Purchaserany investments in, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsPersons;
(xi) terminatesuffer any damage, amenddestruction or casualty loss exceeding, restatein the aggregate, supplement $25,000 whether or waive not covered by insurance;
(xii) make any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, investment other than in the Ordinary Course of Business or organize any subsidiary;
(xiii) enter into any other transaction, other than in the Ordinary Course of Business;
(xiv) make any payments for political contributions or make any bribes, kickback payments or other illegal payments;
(xv) hire or appoint any Employee, officer, Independent Contractor, or advisor;
(xvi) increase any officer’s or Employee’s compensation, incentive arrangements or other benefits;
(xvii) amend its articles of incorporation or bylaws or comparable governing documents;
(xviii) directly or indirectly engage in any transaction, arrangement or Contract with any officer, director, manager, partner, shareholder or other insider or Affiliate which is not at arm’s length;
(xix) transfer, issue, sell, pledge, encumber or dispose of the equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries;
(xx) effect any recapitalization, reclassification, stock split, combination or like change in its capitalization, or amended the terms of any of its outstanding securities;
(xxi) make a change in its accounting or Tax reporting principles, methods or policies;
(xxii) (A) make, change or revoke any Tax election (other than the Tax election described in Section 8.7(f) of this Agreement), settle or compromise any Tax Claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (B) Permitprepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and the Company and the Subsidiaries provided Buyer a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for Buyer to review and approve (such approval not to be unreasonably withheld or delayed);
(xiixxiii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,00015,000;
(xiiixxiv) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesLiabilities;
(xivxxv) take amend any action which would adversely affect the ability of the parties insurance contract or fail to consummate the transactions contemplated by this Agreementnotify any insurance claim;
(xvxxvi) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet amend, modify or terminate any Plan, except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementextent an amendment was required to comply with applicable Law; or
(xviixxvii) agree to do anything (A) prohibited by this Section 6.2, or (B) that which would make any of the representations and warranties of the Company Company, the Subsidiaries or Sellers in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall use their best efforts, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Thalia Woods Management, Inc.), Stock Purchase Agreement (Dukes Owen Richard)
Conduct of the Business Pending the Closing. The Sellers agree that, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to its terms, except as (a) Except as otherwise expressly provided set forth on Schedule 6.2, (b) may be authorized by this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), or (c) may otherwise be contemplated by this Agreement, the Company shall:
Sellers shall (i) conduct the Business only in the Ordinary Course of Business;
, (ii) comply in all material respects with applicable Laws and (iii) use its their commercially reasonable efforts to (A) preserve the present business operationsmaterial Transferred Assets (subject to any dispositions of inventory, organization (including officers collection of accounts receivable, realization of prepaid expenses and Employees) and goodwill full performance or other expiration of Contracts, in each case, in the Company and Ordinary Course of Business), (B) preserve the present relationships maintain their existing relations and goodwill with Persons customers, suppliers, distributors and others having business dealings with the Company and (including customers C) keep available the services of the Key Employees. Without limiting the generality of the foregoing, and suppliersas an extension thereof, the Company and, solely with respect to the following clauses (g), (i) and (r), Paddock Properties shall not, and shall not permit the Subsidiary to, directly or indirectly, do, agree or commit to do, or authorize any of the following:
(a) authorize, adopt or effect any change in its articles of incorporation, by-laws, limited liability company agreement or other organizational documents;
(iiib) maintain make any change in its authorized or issued capital stock or other equity interests or, directly or indirectly, acquire, redeem, issue, deliver, encumber, sell or otherwise dispose of any of its capital stock or other equity interests or securities convertible into, or exercisable or exchangeable for, any of its capital stock or other equity interests or authorize any such action;
(Ac) all split, combine or reclassify any of the assets and properties its capital stock or other equity interests or issue any other security in respect of, in lieu of or used byin substitution for shares of its capital stock or other equity interests;
(d) declare, the Company consistent with past practiceset aside, and make or pay any dividend or other distribution payable in property or other in kind consideration, in respect of its capital stock or other equity interests;
(Be) insurance upon all issue any note, bond, or other debt security or create, incur, assume, or guarantee any Liabilities, other than Liabilities under Material Contracts in existence as of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (Df) make any loans, advances of or capital contributions to, or investments in, any Person, other Personthan any loans or advances that will be repaid prior to or at the Closing;
(iiig) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assigntransfer, lease, license, transfer, convey, lease pledge or encumber or otherwise dispose of any material Transferred Asset (including by merger, consolidation, asset sale, formation of a joint venture or other business combination), except (i) pursuant to Contracts in existence as of the Purchased Assets date of this Agreement or (except for fair consideration in the Ordinary Course ii) sales of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except inventory in the Ordinary Course of Business;
(viih) enter into, adversely modify or terminate any labor amend or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Businessaffirmatively terminate, or the ability of Newco waive, release or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive assign any rights under or claims under, any (A) Material Contract, Real Property Leaseexcept (i) as may be required by Law or by such Material Contract, Personal Property Lease or Intellectual Property License, other than (ii) in the Ordinary Course of Business or (Biii) Permitany Material Contract that is an Excluded Asset; or enter into any other Contract that, if existing on the date of this Agreement, would be a Material Contract, other than Contracts with customers that generate revenues for the Business and other than Contracts that are Excluded Assets;
(xiii) settle demolish or compromise any pending or threatened Legal Proceeding materially alter the Facility or any claim real property that is the subject of a Company Lease;
(j) cancel, compromise or claims forsettle any material claim, or waive or release any material rights of the Company or the Subsidiary;
(k) except as required to maintain qualification pursuant to the Code or as required by Law or by the terms of any Company Benefit Plan, adopt, enter into, amend, alter or terminate any Company Benefit Plan (including any award issued thereunder), fund or in any other way secure any payment of compensation or benefits under any Contract or Company Benefit Plan, or exercise any discretion to accelerate the vesting or payment of any compensation or benefit under any Contract or Company Benefit Plan;
(l) grant or agree to grant any increase in the wages, salary, bonus opportunities or other compensation, remuneration or benefits (including severance or termination pay) of any employee, officer, consultant, independent contractor, manager or director of the Company, other than (a) pursuant to Material Contracts in existence as of the date of this Agreement or (b) pursuant to the existing terms of a Company Benefit Plan; or take any action that would constitute a “mass lay-off,” a “mass termination,” or a “plant closing,” or that would result otherwise trigger notice requirements under any applicable Law concerning reductions in force, such as the WARN Act or any similar Law in any applicable jurisdiction;
(m) acquire (by merger, consolidation, formation of a loss joint venture, acquisition of revenue ofstock or assets or other business combination) any corporation, an amount that couldpartnership or other business organization or division thereof, all or substantially all of the assets of a business or business unit, or a collection of any material portion of the assets of any Person, or merge or consolidate with any Person;
(n) make any material change in any method of accounting or accounting practice policy, other than as required by applicable Law or by a change in GAAP;
(o) make or change any material Tax election, change in any material respect its method of Tax accounting or settle any material claim relating to Taxes;
(p) make, or commit to make, capital expenditures that, in the aggregate, exceed $2,000,000, other than pursuant to Material Contracts in existence as of the date of this Agreement;
(q) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or the Subsidiary, or enter into a letter of intent or agreement in principle with respect thereto, other than pursuant to Material Contracts in existence as of the date of this Agreement;
(r) take or fail to take any action that, individually or in the aggregate, would reasonably be expected to be greater than $50,000;
(xiii) change result in, a Material Adverse Effect or modify its credit, collection constitute a willful breach of any representation or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability warranty of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSellers made herein; or
(xviis) authorize, agree or otherwise commit to do anything (A) prohibited by this Section 6.2, (B) that would make take any of the representations and warranties of actions prohibited by the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or foregoing clauses (Ca) that could be reasonably expected to have a Material Adverse Effect with respect to the Companythrough (r).
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Perrigo Co)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Company Sellers shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable their best efforts to (A) preserve the their present business operations, operations and organization (including officers their management and Employeessales force) and the goodwill of the Company Sellers and the Business and (B) preserve and maintain the present relationships with Persons Purchased Assets and the Business’s rights, relationships, Contracts and goodwill of its customers, lenders, suppliers, regulators, vendors, service providers, personnel and others having business dealings relations with the Company (including customers and suppliers)it;
(iii) maintain (A) all of the assets and properties ofof the Sellers and the Business in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the assets and properties of the Company Sellers and the Business in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, Documents in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts and records payable of the Company Business in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply notify the Purchaser promptly (and in all cases, no later than forty-eight (48) hours) in the event a Key Customer or Key Vendor threatens or notifies the Sellers of its intention to terminate or otherwise modify its relationship with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)Business, including making such capital expenditures in the amounts and at the times set forth in such plancase, the Sellers shall consult with Purchaser with respect to such Key Customer or Key Vendor;
(vi) comply in all material respects with all applicable Laws;; and
(vii) not take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent any action which would adversely affect the abandonment, loss or impairment of all Intellectual Property ability of the CompanyParties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of NewcoPurchaser, the Company Sellers shall not:
(i) issue, create, incur, assume or guarantee any indebtedness, other than pursuant to the Terms and Conditions of Proposed Senior Secured, Super-Priority Debtor-in-Possession Credit Facility, by and among the Sellers and SWK Funding LLC dated as of October 1, 2024;
(Aii) increase the salary acquire any properties or assets (other compensation of any director or Employee of the Company except for normal year-end increases than inventory in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration sale of inventory in the Ordinary Course of Business);
(iii) except as required pursuant to the terms of any Seller Plan in effect on the date hereof and set forth on Section 5.18(a) of the CompanyDisclosure Schedule or any agreements to pay Compensatory Amounts set forth on Section 5.18(a) of the Disclosure Schedule (which shall be treated as an Excluded Liability), (A) establish or increase or promise to increase any benefits under any Seller Plan, except as required by applicable Law or (B) award or pay any bonuses to any employee, or enter into any employment, bonus, severance or similar agreement (nor amend any such agreement) or agree to increase the compensation payable or to become payable by it to any employee or enter into or materially amend any Seller Plan;
(iv) give notice to terminate or modify any Purchased Contract or enter into any new Contract that would constitute a Purchased Contract, if entered into prior to the date of this Agreement;
(v) make or rescind any election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or except as provided is required by applicable Law or GAAP, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in Section 6.6 hereofthe preparation of its most recent Tax Returns;
(vi) subject to any Lien or otherwise encumber or permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible) of the Sellers, other than Permitted Liens in the Ordinary Course of Business or which are otherwise released in connection with the Bankruptcy Cases and the Sale Order;
(vii) enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(viviii) cancel or compromise enter into any debt or claim, or waive or release commitment for capital expenditures in excess of $25,000 for any material right of the Company except individual commitment and $50,000 for all commitments in the Ordinary Course of Businessaggregate;
(viiix) negotiate, enter into, modify or terminate any labor or collective bargaining agreement oror recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeeorganization;
(viiiA) introduce implement any material change employee layoffs that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with respect annual compensation in excess of $150,000;
(xi) release, assign, compromise, settle or agree to settle any Action, other than compromises, settlements or agreements to settle Actions that involve only the operation payment of the Business, including any material change money damages not in excess of $25,000 individually or $100,000 in the types, nature, composition or quality of products or services, or, aggregate;
(xii) other than in the Ordinary Course of Business, make accelerate the collection of any change in product specifications Accounts Receivable or prices other payment (including by offering or terms promoting discounts or rebates outside of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business);
(xxiii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, the Sellers to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea;
(xixiv) terminatemake any changes in its financial accounting methods, amendexcept insofar as may have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, restatelease, supplement license, sublicense, assign, transfer, abandon, allow to lapse or waive expire, or otherwise dispose of any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Owned Intellectual Property License, (other than (x) in the Ordinary Course of Business Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Business, or (Bz) Permit;
(xii) settle with respect to immaterial or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Companyobsolete Intellectual Property);
(xvi) agree amend the organizational documents of any Seller;
(xvii) make any expenditure related to materially increase Liabilities from or in connection with the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementExcluded Business; or
(xviixviii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Conduct of the Business Pending the Closing. Sellers hereby jointly and severally covenant that, from the date hereof to and including the Closing Date, unless Buyer shall otherwise consent (such consent not to be unreasonably withheld or delayed) or as otherwise contemplated by this Agreement:
(a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof Business shall be conducted and the Closing, the Company shall:
(i) conduct the Business Assets repaired and maintained only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operationsordinary and usual course, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company in a manner consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Balfour shall not:
not (i) (Aexcept as set forth in Schedule 5.1(b) increase hereto make any commitment to make any capital expenditures after the salary Closing Date individually in excess of $20,000 or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course aggregate in excess of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party$250,000; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement amend or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business its material contracts; or (Biii) Permitenter into (1) any written employment or severance agreement with any Acquired Employee or (2) any new employee benefit plan, program or arrangement or amend any existing employee benefit plan, program or arrangement or grant any increases in compensation to the Acquired Employees in excess of increases in compensation consistent with the past practices of the Business;
(xiic) settle or compromise except in the ordinary course of business consistent with past practice, Balfour shall not (i) other than as set forth on Schedule 5.1(c), dispose of any pending or threatened Legal Proceeding or any claim or claims for, or that would result in capital assets with a loss of revenue of, an amount that couldbook value, individually or in the aggregate, reasonably be expected to be greater than in excess of $50,00020,000 or further encumber any of its capital assets or (ii) incur, or guarantee or otherwise become liable for, any indebtedness for borrowed money;
(xiiid) change Sellers shall maintain in full force and effect all insurance policies now in effect or modify its credit, collection renewals thereof covering the Assets or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Business and the Employees;
(xive) take any action which would adversely affect the ability Sellers shall promptly notify Buyer of the parties following of which any of them become aware: (i) any breach or violation of, default or event of default under, or actual or threatened termination or cancellation of any material contract or other material instrument relating to consummate the transactions contemplated by this AgreementBusiness; (ii) any material loss of, damage to, or disposition of any of the Assets (other than the sale or use of inventories in the ordinary course of business); and (iii) any material claim or litigation, threatened or instituted against any Seller and affecting the Business;
(xvf) amend Sellers shall consult with Buyer with respect to any collective bargaining negotiations affecting the operating agreement Business and the adoption of the Companyemployee benefit plans;
(xvig) agree to materially increase Liabilities from Other than in connection with the amounts Temporary Leases and Subleases no Seller shall sell, dispose of, lease, sublease, distribute, encumber or enter into any agreement, arrangement or commitment, whether oral or written, for the sale, disposition, leasing, subleasing, distribution or encumbrance of any portion of the Assets or the Business (other than the sale of obsolete equipment or the sale or use of inventories in the ordinary course of business of the Business or as set forth on the Balance Sheet except in the Ordinary Course of Business under loan item (c)(i) above) or credit agreements initiate or arrangements up participate, through agents, representatives or otherwise, in any discussions or negotiations with, or otherwise solicit from, any corporation, business or person any proposals or offers relating to the maximum amounts and other terms as in effect on disposition of any such portion of the date of this Agreement; orBusiness;
(xviih) agree to do anything (A) prohibited by this Section 6.2, (B) that would No Seller shall make any material change to any business policy of the representations and warranties Business, including, without limitation, promotional, advertising, marketing, pricing, purchasing, personnel, return or product acquisition policy; and
(i) Sellers shall use their respective best efforts to preserve for the benefit of the Company in this Agreement or any of Business their relations with the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyBusiness' customers and suppliers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Town & Country Corp), Asset Purchase Agreement (Commemorative Brands Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by The Seller covenants and agrees that between the date of this Agreement and the Closing, unless the Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld), (i) the business of the Seller and its Subsidiaries shall be conducted only in, and the Seller and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Seller and its Subsidiaries shall use reasonable best efforts to preserve intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Seller and its Subsidiaries with customers, suppliers and other persons with which the Seller or its Subsidiaries has business relations, and (iii) the Seller and its Subsidiaries will comply with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act. Without limiting the foregoing, neither the Seller nor any of its Subsidiaries shall, except in the ordinary course of business consistent with past practice as of December 31, 1999, (i) materially reduce the expenses of the Seller or its Subsidiaries relating to sales or customer service or support, (ii) materially discount the price or materially alter the terms of any of the Seller's or its Subsidiaries' products or services, (iii) reduce or discount any accounts receivable of the Seller or any Subsidiary to accelerate collection of such accounts receivable or sell or factor any accounts receivable of the Seller or any Subsidiary, or (iv) manage the accounts payable of the Seller or any Subsidiary in a manner inconsistent with the Seller's past practice as of December 31, 1999.
(b) The Seller covenants and agrees that between the date of this Agreement and the Closing the Seller shall not, nor shall the Seller permit any of its Subsidiaries, without the prior written consent of Newcothe Purchaser, between the date hereof and the Closing, the Company shall:
to (i) conduct declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for dividends by a wholly owned Subsidiary of the Business only in Seller to the Ordinary Course Seller or another wholly owned Subsidiary of Business;
the Seller, (ii) use split, combine or reclassify any of its commercially reasonable efforts to (A) preserve capital stock or issue or authorize or propose the present business operationsissuance of any other securities in respect of, organization (including officers and Employees) and goodwill in lieu of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
or in substitution for shares of its capital stock; (iii) maintain repurchase or otherwise acquire any shares of its capital stock; (Aiv) all of issue, deliver or sell, or authorize or propose the assets and properties issuance, delivery or sale of, any shares of its capital stock or used byany securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the Company consistent with past practice, and issuance of shares of Seller Common Stock upon (Bx) insurance upon all the exercise of the assets and properties Seller Options outstanding as of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
, (ivy) (A) maintain the books, accounts and records exercise of warrants outstanding as of the Company date of this Agreement or (z) the issuance of options to purchase Seller Common Stock described in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations Section 3.7 of the Company;
Seller Disclosure Letter (the allocation of which is subject to the prior approval of the Purchaser) or (v) comply with the capital expenditure plan take any action that would, or could reasonably be expected to, result in any of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times conditions set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanyArticle VI not being satisfied.
(bc) Without limiting The Seller covenants and agrees that between the generality date of the foregoing, except as otherwise expressly provided by this Agreement or with and the Closing the Seller shall not, nor shall the Seller permit any of its Subsidiaries to, without the prior written consent of Newcothe Purchaser, which consent shall not be unreasonably withheld (such response shall be made within five (5) business days of receipt by the Company Purchaser of notice of such request (or two (2) business days in the case of clauses (xvii), (xix) and (xx) below), otherwise consent shall not:
be deemed to have been given) (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) increase the salary borrowings under existing lines of credit (or other compensation under any refinancing of any director such existing lines) or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonusindebtedness owing to, benefit or other direct guaranties of indebtedness owing to, the Seller or indirect compensation to any Employee or director, (C) increase guarantees, loans or advances to employees less than $5,000 to an individual employee and $20,000 in the coverage aggregate with respect to business travel expenses in the ordinary course of business consistent with past practice; (iii) accelerate the timing of payments of any outstanding indebtedness for borrowed money; (iv) make any loans or benefits available under advances to any other person other than loans or advances between any Subsidiaries of the Seller or between the Seller and any of its Subsidiaries (other than guarantees, loans or create any newadvances to employees less than $5,000 to an individual employee and $20,000 in the aggregate with respect to business travel expenses in the ordinary course of business consistent with past practice); (v) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus mortgage or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with pledge any of the directors, officers, Employees, agents Assets; (vi) merge or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement consolidate with any directors other entity in any transaction, or officers of sell any business or Assets other than with respect to customer agreements approved in writing by the Company Purchaser (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property than with respect to the units or other equity interests sale of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected assets identified in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of BusinessSection 1.3(m) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
Seller Disclosure Letter); (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
change its accounting policies except as required by GAAP; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications employment terms for any of its directors or prices or terms of distributions of such products;
officers; (ix) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or Affiliates of the Seller or its Subsidiaries or enter into any transaction new, or enter intoamend any existing, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
employment agreements; (x) enter into make any Contract, understanding or commitment that restrains, restricts, limits or impedes change to the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
Seller Benefit Plans; (xi) terminate, amend, restate, supplement amend or waive cancel or agree to the amendment or cancellation of any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease Assumed Contract or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or enter into a contract that would result have been an Assumed Contract had such contract been in a loss existence as of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixii) agree to do anything pay, loan or advance (Aother than the payment of compensation, directors' fees or reimbursement of expenses in the ordinary course of business) prohibited by this Section 6.2any amount to, or sell, transfer or lease any properties or assets (Breal, personal or mixed, tangible or intangible) that would make to, or enter into any agreement with, any of the representations and warranties of the Company in this Agreement its officers or directors or any Affiliate or Associate of the Company Documents untrue or incorrect in any material respect or could result in any of its officers or directors; (xiii) form or commence the conditions to the Closing not being satisfied operations of any business or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.any corporation, partnership, joint venture, business association or other business organization or division thereof;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(v) (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except, with respect to the items listed on Schedule 5.2(b)(vii) hereto, as previously consented to by the Purchaser;
(viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business;
(ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 2 contracts
Sources: Share Exchange Agreement (Havana Furnishings Inc.), Share Exchange Agreement (Offline Consulting Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except, with respect to the items listed on Schedule 5.2(b)(vii) hereto, as previously consented to by the Purchaser;
(viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business;
(ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 2 contracts
Sources: Share Exchange Agreement (Synerteck Inc), Share Exchange Agreement (Bongiovi Entertainment Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as otherwise expressly provided by this Agreement set forth on Schedule 7.2(a), or (ii) with the prior written consent of Newco, between the date hereof and the ClosingAcquiror, the Company and each of its Subsidiaries shall:
(iA) conduct the Business respective businesses only in the Ordinary Course of Business, except for the acquisition of Interest B as contemplated under Section 7.9;
(iiB) use its commercially reasonable efforts to maintain working capital of the Company at levels consistent with past practice;
(AC) pay its debts and Taxes when due and properly withhold all Taxes (such as withholding of Taxes from Employees or Former Employees); and
(D) use its commercially reasonable efforts to preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and each of its Subsidiaries.
(b) Except (i) as set forth on Schedule 7.2(b) or (ii) with the prior written consent of Acquiror, the Company and each of its Subsidiaries shall not:
(A) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(B) preserve the present relationships with Persons having business dealings with issue or sell any shares of capital stock or other securities of the Company (including customers and suppliers)or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iiiC) maintain (A) all effect any recapitalization, reclassification or like change in the capitalization of the assets and properties ofCompany, or used by, except to the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementextent required by Law;
(ivD) (A) maintain amend the books, accounts and records articles of incorporation or by-laws or comparable organizational documents of the Company in the Ordinary Course of Business, Company;
(BE) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts as required by Law or Liabilities utilizing all available cash and any available line of creditContract, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A1) increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B2) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C3) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D4) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition competition, retention or similar agreement or arrangement with any directors or officers of the Company Employee, (or amend any such agreement) to which the Company is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) Employee except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivF) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of its Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) , for the purpose of disposing of obsolete or worthless assets or the Companyacquisition of Interest B in accordance with Section 7.9);
(vG) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, cancel or compromise any material debt or claim or waive or release any material right of the Company or any of its Subsidiaries;
(H) enter into, modify, extend or terminate any labor or collective bargaining agreement;
(I) enter into or agree to enter into any merger or consolidation with any other Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise agreement to acquire the securities of any other Person;
(viJ) cancel incur any Indebtedness for borrowed money or compromise issue any debt securities or claimassume, guarantee or endorse, or waive otherwise as an accommodation become responsible for, the obligations of any person, or release make any material right of the Company except in the Ordinary Course of Businessloans or advances, or enter into any Hedging Arrangements;
(viiK) enter into, modify except to the extent required by Law or terminate any labor or collective bargaining agreement or, through negotiation or otherwiseGAAP, make any commitment or incur any Liability material change to any labor organization with respect to any Employeeof its methods of accounting or methods of reporting revenue and expenses or accounting practices;
(viiiL) introduce make any material change with respect to the operation of the Business, including any material change new capital expenditures exceeding $50,000.00 in the types, nature, composition or quality of products or services, or, aggregate (other than the acquisition of Interest B in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsaccordance with Section 7.9);
(ixM) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business enter into, modify, amend or (B) Permitterminate any Material Contract;
(xiiN) (1) make, revoke or change any material Tax election or (2) settle or compromise any pending material federal, state, local or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000foreign income Tax liability;
(xiiiO) change participate or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past dueengage in any transaction that constitutes a “reportable transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(1) or fail to pay or delay payment of payables or other liabilitiesany transaction that constitutes a “listed transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2);
(xivP) take make any action which would adversely affect principal payments to the ability holder of the parties to consummate the transactions contemplated by this Agreementthat certain 6% Exchangeable Secured Subordinated Debenture of 1212500 Alberta Ltd. due April 25, 2008;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviiQ) agree to do anything (A) prohibited by this Section 6.2, 7.2(b); or
(BR) take any action that would make any of the representations representation and warranties warranty of the Company in this Agreement or any of the Company Documents untrue or incorrect hereunder inaccurate in any material respect at, or could result as of any time prior to, the Effective Time or omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyat any such time.
Appears in 2 contracts
Sources: Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
Conduct of the Business Pending the Closing. From the date hereof through and including the Closing Date, except (a1) Except as set forth on Schedule 4.1, (2) as required by applicable Law (for which, to the extent practicable, Sellers shall provide prior notice to Buyer), (3) as otherwise expressly provided specifically contemplated by this Agreement Agreement, (4) with respect to the transfer of any Elsevier Retained Assets to any Seller or Affiliate thereof or (5) with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shall:
Sellers (ia) shall conduct the Business Business, and shall cause each MDL Group Company to conduct the Business, only in the Ordinary Course ordinary course of Business;
(ii) business, shall use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business in all material respects, preserve the condition and (B) integrity of the Additional Assets in all material respects and preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
, including the Top Customers and Top Suppliers (iii) maintain (A) all to the extent such Top Suppliers are customers or suppliers, respectively, of the assets and properties of, or used by, Business as of the Company consistent with past practicedate hereof), and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) transfer, issue, sell, encumber or dispose of any equity interests of any MDL Group Company or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of or any stock appreciation, phantom stock or other similar right with respect to any MDL Group Company;
(ii) except as contemplated by Section 4.12, effect any recapitalization, reclassification or any other change in the capitalization of any MDL Group Company;
(iii) amend the organizational documents of any MDL Group Company;
(iv) except after consultation with Buyer, hire any new employees into any MDL Group Company or, except in the ordinary course of business, (A) increase the salary annual level of compensation, bonus or any other compensation benefits payable or to become payable by any MDL Group Company to any of any director its directors or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, Employees; (B) grant or increase any bonus, severance, termination pay, benefit or other direct or indirect compensation to any Employee director or director, Employee; or (C) increase the coverage enter into, establish, amend or benefits available under terminate any (employment, consulting, retention, change of control, labor or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensationcollective bargaining, bonus or other incentive compensation, insuranceprofit sharing, pension health or welfare, stock option or other employee benefit plan equity, pension, retirement, vacation, severance or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement agreement, or any other plan, agreement, program, policy or arrangement with for the benefit of Employees that would constitute an Employee Benefit Plan, to which any directors MDL Group Company would be a party or officers of otherwise would have any liability or potential liability except to the Company (or amend extent any such agreement) to which the Company action is a party; or (E) pay or make any dividend or distribution of cash or other property taken with respect to the units or other equity interests similarly situated employees of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected Related Persons who participate in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Companyan Employee Benefit Plan;
(v) except make any material change in any method of accounting or accounting practice, other than in accordance with the Seller Accounting Principles or as provided in Section 6.6 hereof, required by applicable Law;
(vi) permit any MDL Group Company to enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in or acquire any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
other person (vi) cancel whether by merger, stock purchase, asset purchase or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Businessotherwise);
(vii) enter into, modify into any contract or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Business, the Assets or the Additional Assets not in the ordinary course of business or create or permit to be created any EmployeeEncumbrance with respect to the Business, the Assets or the Additional Assets, other than Permitted Encumbrances;
(viii) introduce sell or otherwise dispose of any material change with respect to the operation portion of the Business, including the Assets or the Additional Assets or make any material change commitment to do so, not in the types, nature, composition or quality ordinary course of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsbusiness;
(ix) enter into any transaction contract or enter intocommitment which (i) imposes any material restriction on the ability of any MDL Group Company to compete in any business or activity within a certain geographic area, modify or renew pursuant to which any Contract benefit or right is required to be given or lost as a result of so competing, (ii) which by reason grants any material exclusive license, supply or distribution agreement or other exclusive rights, (iii) which grants any material “most favored nation”, rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Intellectual Property Right, (iv) requires the purchase of all or substantially all or a given portion of the Business’ requirements from a given third party which is material to the Business, or (v) would have any of the foregoing effects on Buyer or any of its size or otherwise is not in Affiliates after the Ordinary Course of BusinessClosing;
(x) enter into incur, assume, guarantee or extend any ContractIndebtedness, understanding or commitment that restrains, restricts, limits or impedes except in the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line ordinary course of business in consistent with past practice or which will be reflected as an Intercompany Balance or any geographic area debt owed to any Seller or solicit the employment of any personstheir Affiliates which will be eliminated at Closing;
(xi) terminate, amend, restate, supplement create or waive suffer to incur any rights under Encumbrance on any (A) Material Contract, Real Property Lease, Personal Property Lease Asset or Intellectual Property License, any Additional Asset other than in the Ordinary Course of Business or (B) PermitPermitted Encumbrances;
(xii) settle except as contemplated by Section 4.12, lend money to any person (other than routine travel advances made to employees in the ordinary course of business), or compromise incur or guarantee any pending or threatened Legal Proceeding indebtedness for borrowed money or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000long-term indebtedness;
(xiii) change enter into or modify its creditbecome bound by, collection or payment policiespermit any of the assets owned or used by the Business to become bound by, procedures any Material Contract, or practicesamend or terminate, including acceleration or waive or exercise any material right or remedy under, any Material Contract except renewals of collections or receivables (whether or not Material Contracts with Top Customers and Top Suppliers made in the ordinary course of business consistent with past due) or fail to pay or delay payment of payables or other liabilitiespractice;
(xiv) take any action which would adversely affect fail to maintain adequate insurance coverage with respect to the ability of Business and the parties to consummate the transactions contemplated by this AgreementAdditional Assets at levels consistent with past practice;
(xv) amend settle, or offer or propose to settle, any material litigation, investigation, arbitration, proceeding or other claim involving or against the operating agreement of the CompanyBusiness;
(xvi) agree make, amend or change any Tax election, change an annual accounting period, adopt or change any accounting method, make a request for a tax ruling or surrender any right to materially increase Liabilities from claim a refund of Taxes to any of the amounts set forth on MDL Group Companies, file any amended Tax Return or any amendment to any previously filed Tax returns (which may adversely affect any of Buyer, the Balance Sheet except in MDL Group Companies or any of their respective Affiliates for any period ending after the Ordinary Course Closing Date), or enter into any closing agreement or settle or compromise any Tax liability, claim or assessment (which may adversely affect any of Business under loan Buyer, the MDL Group Companies or credit agreements or arrangements up to any of their Affiliates for any period ending after the maximum amounts and other terms as in effect on the date of this AgreementClosing Date); or
(xvii) agree enter into any contract or letter of intent to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company4.1.
Appears in 2 contracts
Sources: Sale Agreement (Accelrys, Inc.), Sale Agreement (Symyx Technologies Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth in Section 7.2(a) of the Company Disclosure Letter, (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement Agreement, any of the Seller Documents or the Company Documents, or (z) with the prior written consent of NewcoBuyer (such consent not to be unreasonably withheld, between the date hereof conditioned or delayed; provided, that Buyer shall respond as soon as reasonably practicable following receipt of a written request for such consent), Panadero Corp shall, and the Closing, the Company shallshall cause its Subsidiaries to:
(i) conduct the Business only respective businesses of Panadero Corp and the Subsidiaries in the Ordinary Course of Business;
(ii) cause Panadero Aggregates to make a valid election under Section 754 of the Code; and
(iii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Panadero Corp and its Subsidiaries, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of Panadero Corp and its Subsidiaries.
(b) Other than (1) as set forth in Section 7.2(b) of the Company Disclosure Letter, (2) as required by applicable Law, (3) as otherwise contemplated by this Agreement, any of the Seller Documents or any of the Company Documents or (4) with the Company prior written consent of Buyer (including customers such consent not to be unreasonably withheld, conditioned or delayed; provided, that Buyer shall respond as soon as reasonably practicable following receipt of a written request for such consent), Panadero Corp shall not, and suppliers)shall not permit its Subsidiaries to:
(i) transfer, issue, sell, purchase, redeem, retire or grant any equity interests of Panadero Corp or any of its Subsidiaries or grant any options, warrants, calls or other rights to purchase or otherwise acquire equity interests of Panadero Corp or any of its Subsidiaries;
(ii) reclassify, combine, split, subdivide or amend the terms of 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;
(iii) maintain (A) all amend in any material respect the certificate of the assets and properties ofincorporation, bylaws or used by, the Company consistent with past practice, and (B) insurance upon all comparable organizational documents of the assets and properties Panadero Corp or any of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementits Subsidiaries;
(iv) declare, set aside or pay any non-cash dividend or non-cash distribution;
(Av) maintain the booksexcept (x) as required pursuant to any existing Labor Agreement, accounts and records of the other Contract or Company in the Ordinary Course of BusinessBenefit Plan, or (y) as required by applicable Law, (B1) continue materially increase the amount of any bonus, salary or other compensation to collect accounts receivable and pay accounts payable and any Company Personnel (other Liabilities set forth on the Balance Sheet than any such increase in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations to an employee who is not a member of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vExecutive Management Team), including making such capital expenditures (2) establish, adopt, enter into or amend in any material respect, or materially increase the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonmentpayments or benefits under, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this any Labor Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any Benefit Plan (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, that would be a Labor Agreement or with any Company Benefit Plan if it were in existence as of the directorsdate hereof), officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, than (x) the Indebtedness reflected in the Balance Sheetconnection with renewals, (y) the Indebtedness incurred modifications or replacements in the Ordinary Course of Business since the Balance Sheet Dateof health insurance and other Company Benefit Plans that are customarily renewed, modified or replaced on an annual basis, and (zy) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except offer letters to new hires engaged in the Ordinary Course of BusinessBusiness who are not members of the Executive Management Team, payprovided that such offer letters do not provide for change in control, prepayretention or severance benefits, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D3) make take any loans, advances of capital contributions to, action to accelerate any rights or investments in, benefits under any other PersonCompany Benefit Plan;
(iiivi) subject to enter into any Lien commitment for any capital expenditures of Panadero Corp or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer any of its Subsidiaries to be subjected to any Lien or otherwise encumbered, any made following the Closing in excess of the Purchased Assetsamounts set forth in Section 7.2(b)(vi) of the Company Disclosure Letter;
(ivvii) without duplication of subsection (vi), acquire or lease any material properties or assets assets, or sell, lease, sublease, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets properties or assets of Panadero Corp and its Subsidiaries with a value in excess of $2,000,000 individually, or $5,000,000 in the aggregate;
(viii) amend or terminate, or assign any material rights or claims under, any Lease (except for fair consideration renewals under the terms thereof, in the Ordinary Course of Business) of the Company);
(vix) change its fiscal year or its present accounting methods or principles in any material respect, except as provided required by GAAP or by the Companies’ auditors;
(x) change any annual Tax accounting period, change any material method of Tax accounting, amend any material Tax Returns, settle any material Tax claim, make or change any material election relating to Taxes or take any action that would result in Section 6.6 hereofa change of the tax classification of Panadero Aggregates or any of its Subsidiaries;
(xi) incur any Indebtedness in excess of $2,000,000 other than in the Ordinary Course of Business; provided, that, for the avoidance of doubt, borrowings under the Credit Facilities, as amended, in amounts not to exceed the aggregate amount of commitments in effect as of the date of this Agreement, shall not require the consent of Buyer;
(xii) permit Panadero Corp or any of its Subsidiaries to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution toother entity, or otherwise acquire the securities of any other Person, except, in each case for transactions between Panadero Corp and/or any of its Subsidiaries;
(vixiii) cancel settle any pending or compromise threatened litigation, proceeding or other Action other than for an amount not in excess of $500,000 individually or $1,000,000 in the aggregate, provided that such settlement does not result in any debt continuing obligations (other than customary confidentiality obligations) of the Companies or claimtheir Subsidiaries and does not involve any injunctive or equitable relief, or waive impose restrictions (other than customary confidentiality obligations), on the Companies or release their Subsidiaries;
(xiv) subject any material right asset or property to any Lien, other than Permitted Exceptions or Liens that will be released at or prior to the Closing;
(xv) amend or terminate, or assign any material rights or claims under, any Company Contract or enter into any Contract that would have constituted a Company Contract if such Contract had been entered into at or prior to the date of the Company except this Agreement, in each case other than in the Ordinary Course of Business;
(viixvi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into granting to any ContractPerson (other than Panadero Aggregates or any of its Subsidiaries) an option or a first refusal, understanding first-offer or commitment that restrainssimilar preferential right to purchase or acquire any material assets of Panadero Corp or its Subsidiaries or (y) containing exclusivity arrangements, restricts, limits a “most favored nation” clause or impedes a covenant not to compete (or otherwise restricting the ability of the Business, Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business engage in any geographic area or solicit business) in each case that is binding on the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding Companies or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementtheir Subsidiaries; or
(xvii) agree or commit, whether in writing or otherwise, to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company foregoing.
(c) Notwithstanding anything contained in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the contrary, Panadero Corp and its Subsidiaries shall be permitted to maintain through the Closing not being satisfied or Date the cash management systems of Panadero Corp and its Subsidiaries, maintain the cash management procedures as currently conducted by Panadero Corp and its Subsidiaries, and periodically settle intercompany balances consistent with past practices (C) that could including through dividends and capital contributions and all such intercompany balances shall be reasonably expected settled at the Closing in accordance with their terms). Panadero Corp and its Subsidiaries are allowed to have a Material Adverse Effect with respect dividend all Cash and Cash Equivalents of Panadero Corp and its Subsidiaries to the CompanySellers immediately prior to the Adjustment Time.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Martin Marietta Materials Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.2(a), (ii) for any exercise of Options existing as of the date hereof, (iii) as required by applicable Law, (iv) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), the Company shall:
, and shall cause each of its Subsidiaries, to use commercially reasonable efforts to (iA) conduct the Business respective businesses and operations of the Company and its Subsidiaries only in the Ordinary Course of Business;
Business in all material respects; (iiB) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present material relationships with Persons having business dealings with the Company and/or its Subsidiaries (including customers and suppliers);
; (iiiC) maintain in the Ordinary Course of Business in all material respects (A1) all of the assets and properties of, or used by, the Company consistent with past practiceor its Subsidiaries in their current condition, ordinary wear and tear excepted, and (B2) insurance upon all of the properties and assets and properties of the Company in all material respects and its Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;this
(iv) (A1) maintain the books, accounts and records of the Company and its Subsidiaries in the Ordinary Course of Business, (B2) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and procedures, without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line otherwise in the Ordinary Course of creditBusiness, and (C3) comply in all material respects with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures and its Subsidiaries in the amounts Ordinary Course of Business in all material respects; and at the times set forth in such plan;
(viE) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except (i) as set forth on Schedule 7.2(b), (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit its Subsidiaries to:
(i) except for the issuance of shares of capital stock pursuant to the exercise of Options existing as of the date hereof, issue, pledge, encumber, or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries;
(ii) amend the Company Charter Documents or any Subsidiary Charter Documents or effect any stock split, reverse stock split, stock dividend (including any dividend or distribution or securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to shares of capital stock of the Company or any of its Subsidiaries or otherwise amend any terms of any shares or series of capital stock of the Company or any of its Subsidiaries;
(iii) except as set forth in Schedule 7.2(b), or as otherwise required by the terms of any Company Benefit Plan set forth on Schedule 5.13(a), (A) increase the salary compensation or other compensation benefits of any director director, officer, employee or Employee consultant of the Company or any of its Subsidiaries (except for normal yearincreases in salaries and wages of non-end increases officer employees in the Ordinary Course of BusinessBusiness and other than for payments of Permitted Bonuses), (B) grant accelerate the vesting or payment of any bonus, compensation or benefit under any Company Benefit Plan (other than the acceleration of vesting of Options or other direct or indirect compensation to any Employee or directorequity securities), (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of its Subsidiaries is a party; party or involving any employee, consultant or director of the Company or any of its Subsidiaries (other than for payments of Permitted Bonuses) or (ED) pay adopt, amend or make terminate any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyCompany Benefit Plans;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (Biv) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease lease, rent or otherwise dispose (including cancel or compromise any debt or claim or waive or release any material right) of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) material properties or assets of the CompanyCompany or any of its Subsidiaries;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into make any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution toto or investment in any Person (other than (A) loans, advances or otherwise acquire the securities of any Person;
(vi) cancel capital contributions to or compromise any debt or claim, or waive or release any material right investments in a Subsidiary of the Company except in the Ordinary Course of BusinessBusiness and (B) routine advances to employees for business expenses in the Ordinary Course of Business in an amount not exceeding $10,000 to any individual employee);
(viivi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization organizations;
(vii) enter into or agree to enter into any merger or consolidation with any corporation or other entity, or acquire the securities or any division, business or all or substantially all of the assets of any other Person;
(viii) except to the extent required by Law, make, change or rescind any election relating to Taxes, adopt or change any method of Tax accounting in respect of Taxes, file any amended Tax Return in respect of Taxes, or settle or compromise any claim, investigation, audit or controversy relating to Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement with respect to any EmployeeTax, surrender any right to claim a Tax refund, offset or other reductions in Tax liability, change any Tax accounting period, obtain a Tax ruling, prepare or file any material Tax Return or claim of refund (unless consistent with past practice and Parent reviews and consents to such filing or claim), enter into any Tax sharing agreement (excluding any agreements whose principal subject matter is not Taxes), or enter into any intercompany transaction giving rise to deferred gain or loss of any kind, in each case if such action could reasonably be expected to materially increase Taxes in a Post-Closing Tax Period;
(viiiix) except to the extent required by Law or GAAP, make any material change to any of its methods of accounting or methods of reporting revenue and expenses or accounting practices;
(x) grant any licenses under any Intellectual Property of the Company and its Subsidiaries (other than non-exclusive licenses granted in the Ordinary Course of Business);
(xi) incur (A) any Indebtedness (other than borrowings in the Ordinary Course of Business under the Company’s existing credit facilities) or (B) any Lien (other than Permitted Exceptions) on any asset or properties (whether tangible or intangible) of the Company or any of its Subsidiaries (other than purchase money security interests in connection with the acquisition of equipment in the Ordinary Course of Business);
(xii) enter into any commitment for capital expenditures of the Company or any Subsidiaries in excess of $100,000 for any individual commitment or $500,000 for all commitments in the aggregate;
(xiii) introduce any material change with respect to the operation of the BusinessCompany or any Subsidiary, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any material change in product specifications or prices or terms of distributions of such productsproducts or materially change its pricing, discount, allowance or return policies or grant any material pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(xxiv) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of Newco or Purchaser, any Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsPersons;
(xixv) other than pursuant to the express terms of such Contract or to the extent not material and in the Ordinary Course of Business, terminate, amend, restate, supplement or waive any material rights under any (A) Material Significant Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business Customer License Agreement or (B) Permit;
(xiixvi) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000500,000;
(xiiixvii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables any required maintenance or other liabilities;
(xiv) take similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any action which would adversely affect the ability applications for registration of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementIntellectual Property; or
(xviixviii) agree or commit in writing to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall use their best efforts, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Sellers or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Sellers; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 2 contracts
Sources: Stock Purchase Agreement (National Investment Managers Inc.), Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Chapter 11 Case) or with the prior written consent of NewcoPurchaser, between Sellers shall, and shall cause their Subsidiaries to, with respect to the date hereof and the Closing, the Company shallBusiness only:
(i) except as set forth in Schedule 8.3, conduct the Business only in the Ordinary Course of BusinessBusiness as debtors in possession;
(ii) use its their commercially reasonable efforts efforts, as debtors in possession, to (A) preserve the their present business operations, organization (including officers and Employeesemployees) and goodwill of the Company Sellers and (B) preserve the present relationships with Persons having business dealings with the Company Sellers (including without limitation customers and suppliers);
(iii) maintain (A) all of the assets Purchased Assets and properties ofLicensed Assets in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the assets Purchased Assets and properties of the Company Licensed Assets in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Sellers in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay pay, with respect to the Purchased Contracts, post-petition accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures when due and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) subject to existing defaults and future payment defaults, comply with all contractual and other obligations of under the CompanyPurchased Contracts;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viiivi) pay all maintenance and similar fees and not take all other appropriate actions as necessary to prevent any action which would adversely affect the abandonment, loss or impairment of all Intellectual Property ability of the Companyparties to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Chapter 11 Case) or with the prior written consent of NewcoPurchaser, the Company Sellers shall not, and shall not permit their Subsidiaries to, with respect to the Business only:
(i) (A) increase with respect to the salary or other compensation of any director or Employee of the Company except for normal year-end increases Employees set forth in the Ordinary Course of BusinessSchedule 9.1, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Sellers or any of their Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) createmake or rescind any election relating to Taxes or settle or compromise any claim, incuraction, assumesuit, guaranteelitigation, endorse proceeding, arbitration, investigation, audit or otherwise become liable or responsible with respect controversy relating to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related Taxes to the Permitted Exceptionsextent that such election, settlement or compromise would have any material post-Closing effect that would be binding on Purchaser for taxable periods (xor portions thereof) beginning on or after the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Closing Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the CompanySellers;
(viv) except as provided with respect to the Employees set forth in Section 6.6 hereofSchedule 9.1, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization;
(viiiv) except as set forth in Schedule 8.3, introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition (except as required by the FDA) or quality of products the Products or services, or, other than in the Ordinary Course of Business, or make any change in product Product specifications or prices or terms of distributions of such productsProducts;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(xvi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea;
(xivii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease Purchased Contract or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviiviii) agree to do anything (A) prohibited by this Section 6.2, (B) that 8.3 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aaipharma Inc), Asset Purchase Agreement (Xanodyne Pharmaceuticals Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except as previously consented to by the Purchaser;
(viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business;
(ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 2 contracts
Sources: Share Exchange Agreement (Armitage Mining Corp), Share Exchange Agreement (Armitage Mining Corp)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as set forth on Schedule 7.2(a), (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause the Subsidiaries to:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanySubsidiaries.
(b) Without limiting the generality of the foregoingExcept (I) as set forth on Schedule 7.2(b), except (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit the Subsidiaries to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries;
(ii) issue or sell any shares of capital stock or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Subsidiaries;
(iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of the Subsidiaries;
(iv) amend the certificate of incorporation or by-laws of the Company or any of the Subsidiaries;
(v) (A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in or any of the Ordinary Course of BusinessSubsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives employees of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company;
(ii) (A) createCompany or any of the Subsidiaries, incurexcept, assumein each case, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed as required by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivvi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of the Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets);
(vvii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in or any of the Ordinary Course of BusinessSubsidiaries;
(viiviii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsorganizations;
(ix) enter into or agree to enter into any transaction merger or enter intoconsolidation with any corporation or other entity, modify or renew acquire the securities of any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businessother Person;
(x) enter into or modify any Contract, understanding Contract with any Stockholder or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment Affiliate of any personsStockholder;
(xi) terminateexcept to the extent required by Law, amendmake or rescind any material election relating to Taxes or settle or compromise any claim, restateinvestigation, supplement audit or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course controversy relating to a material amount of Business or (B) PermitTaxes;
(xii) settle except to the extent required by Law or compromise GAAP, make any pending material change to any of its methods of accounting or threatened Legal Proceeding methods of reporting revenue and expenses or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000accounting practices;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take incur any action Liability which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of will be categorized as a Noncurrent Liability on the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement’s balance sheet; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sixx Holdings Inc), Stock Purchase Agreement (Bailey Lee Ann)
Conduct of the Business Pending the Closing. (a) Except (1) as otherwise expressly provided set forth on Schedule 8.2(a), (2) as required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, between during the period from the date hereof of this Agreement to and through the ClosingClosing Date, the Company Sellers shall:
(i) conduct the Business only in the Ordinary Course of Business, including, without limitation, with respect to (a) the pricing and terms of sale of inventory, (b) the timing, discounting and other practices in connection with the collection of accounts receivable, (c) the timing and other practices for payment of account payables and (d) compensation, bonuses, benefits and severance payable to Employees, subject to and in accordance with the further limitations set forth in Section 9.1(a);
(ii) use its their commercially reasonable efforts to (Aa) keep their assets intact and maintain their assets in at least as good a condition as their current condition (reasonable wear and tear excepted), (b) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (Bc) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)suppliers of the Business;
(iii) maintain perform in all material respects its obligations arising after the Petition Date under any Contract (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementincluding Real Property Leases);
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws that relate to or affect its assets and business or such Person’s ownership and/or use or operation thereof, including the timely, complete and correct filing of all reports and maintenance of all records required by any Governmental Authority to be filed or maintained;
(v) continue to use and operate all assets and all aspects of its business used or operated by the Sellers as of the date hereof in a manner consistent with prior practice and in accordance in all material respects with all applicable Laws, and not enter into any contract nor otherwise act, nor suffer or permit any other Person to act, to restrict, interfere with or prevent the use or operation of such assets or business;
(vi) promptly notify Purchaser in writing of any incidents or accidents occurring on or after the date hereof involving any assets or property owned or operated by the Sellers that resulted or could reasonably be expected to result in damages or losses to any portion of the business of the Sellers or damages in excess of $100,000;
(vii) take steps promptly notify Purchaser in writing of the existence of any adverse business conditions arising on or after the date hereof threatening the continued, normal business operations of the Sellers or of any agreement, consent or order of any Governmental Authority involving any of the Sellers;
(viii) promptly notify Purchaser of any Legal Proceeding of the type described in Section 5.12 commenced after the date hereof and/or, to renew all Permits the Knowledge of Sellers, threatened after the date hereof against the Sellers;
(ix) provide prompt written notice to Purchaser (i) of any change in a timely manner prior any of the information contained in the representations and warranties made by the Sellers in Article V hereof or any exhibits or schedules referred to their lapseherein or attached hereto, including any Schedules and shall promptly furnish any information that Purchaser may reasonably request in relation to such change; provided, however, that such notice shall not operate to cure any breach of the representations and warranties made by the Company herein or any exhibits or schedules referred to herein or attached hereto, including any Schedules; and
(viiix) pay all maintenance and similar fees and take all other appropriate actions as necessary provide prompt written notice to prevent the abandonment, loss or impairment of all Intellectual Property Purchaser of the Company.occurrence of any event that results in or would reasonably be expected to result in a failure to satisfy any of the conditions set forth in Article X.
(b) Without limiting the generality of the foregoingExcept (1) as set forth on Schedule 8.2(b), except (2) as otherwise expressly provided required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, during the Company period from the date of this Agreement to and through the Closing Date, Sellers shall not:
(i) (A) increase the salary take any action as a result of which any representation or other compensation of any director or Employee warranty of the Company except for normal year-end increases Sellers made in Article V would be rendered untrue or incorrect if such representation or warranty were made immediately following the Ordinary Course of Business, (B) grant any bonus, benefit taking or other direct or indirect compensation failure to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any take such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyaction;
(ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any material claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased AssetsAssets to any Lien, except for Liens existing as of the date hereof;
(iv) acquire any material properties or assets other than in the Ordinary Course of Business, or enter into any partnership, joint venture or similar arrangement (including, but not limited to, the contemplated joint venture with a Pakistani company for the formation and operation of a manufacturing facility near Lahore, Pakistan), or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Seller’s assets other than inventory in the Ordinary Course of Business and obsolete or worthless equipment permitted to be sold pursuant to the DIP Credit Agreement;
(except v) cancel, compromise or settle any debt or claim or waive or release any right in excess of $20,000 individually and $250,000 in the aggregate or, in connection with Trade Payables, accounts payable to employees for fair consideration travel and entertainment expense, workers’ compensation payments, or trade receivables, other than in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise enter into any debt or claim, or waive or release any material right commitment for capital expenditures in excess of the Company except $250,000 for all commitments in the Ordinary Course of Businessaggregate except for capital expenditure projects described by project and amount as line items as set forth on Schedule 8.2(b) hereof not to exceed the amount for each such category as described and set forth in such schedule;
(vii) enter into, modify or terminate any labor or collective bargaining agreement Collective Bargaining Agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization;
(viii) introduce incur any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, Indebtedness other than in the Ordinary Course of its Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into assign, modify, cancel, otherwise impair or permit to lapse any transaction Material Contract (other than expiration in accordance with the terms thereof as a result of the passage of time and other than Real Property Leases as to which Section 8.2(b)(x) applies ) involving annual expenditures, purchases or enter intorevenues in excess of $100,000 annually;
(x) assign, modify sublease, amend in any material respect, terminate, exercise (or renew waive) or permit to lapse any Contract which by reason options to renew, options to expand or options to purchase pursuant to any Real Property Leases involving expenditures in excess of its size or otherwise is not $100,000 annually (other than expiration in accordance with the terms thereof as a result of the passage of time);
(xi) make any payments (a) in respect of professional fees for attorneys and accountants except to the extent and on the timing permitted under existing interim compensation and fee application procedures (other than professional fees payable to ordinary course professionals to the extent authorized to be paid under the existing Order of the Bankruptcy Court signed on 6/3/03 Authorizing Retention and Compensation of Professionals Utilized in the Ordinary Course of Business;
), (xb) enter into any Contractunder, understanding in respect of or commitment that restrains, restricts, limits or impedes pursuant to the ability KERP Program (other than the existing scheduled payment for the second quarter of 2005 pursuant to the BusinessKERP Order), or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment fees and expenses of any persons;
financial advisor of Sellers (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than monthly fees in the Ordinary Course of Business currently approved amounts pursuant to existing procedures) or (Bc) Permit;
(xii) settle in respect of fees and expenses of any broker or compromise any pending finder of Sellers except as consented to by Purchaser and except for such fees and expenses of a broker or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up finder relating to the maximum amounts and other terms as in effect on sale of real property by Sellers which are approved by the date of this AgreementBankruptcy Court prior to June 30, 2005; or
(xviixii) agree to do anything (A) prohibited by this Section 6.2, 8.2.
(Bc) that would make any During the period from the date of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to and through the Closing Date, Sellers shall not being satisfied declare, authorize, make or (C) that could be reasonably expected enter into a commitment to have a Material Adverse Effect with respect to the Company.make
Appears in 1 contract
Sources: Asset Purchase Agreement
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by in this Agreement Agreement, or as expressly required to effect the Pre-Sale Reorganization or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld or delayed), between Sellers shall, and Sellers shall cause the date hereof Company and the Subsidiaries, pending Closing, the Company shallto:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers and Employeesemployees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Subsidiaries;
(iii) maintain (A) all of the properties and assets and properties of, (whether tangible or used by, intangible) of the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties (whether tangible or intangible) of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company, the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the CompanyCompany and the Subsidiaries;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vsubject to Section 7.2(xi), including make on a timely basis and not delay the making such of planned capital expenditures in the amounts and at the times set forth in such plan;expenditures; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld or delayed), Sellers shall not, and Sellers shall cause the Company shall notand the Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, the Company or any of the Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries;
(ii) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or interests in, the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or interests in, the Company or any of the Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any of the Subsidiaries, or amend the terms of any outstanding securities of the Company or any of the Subsidiaries;
(iv) amend the memorandum of association, articles of association, certificate of incorporation or by-laws or equivalent organizational documents of the Company or any of the Subsidiaries;
(v) other than in the Ordinary Course of Business (A) increase the salary or other compensation of any director officer or Employee employee of the Company or any of the Subsidiaries, except for normal year-end increases in the Ordinary Course of Businessincreases, (B) grant any bonusunusual or extraordinary bonus (excluding any Employee Bonus), benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company or any of the Subsidiaries (or amend any such agreement) agreement to which the Company or any of the Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company);
(iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently contingently, or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Indebtedness; (B) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the CompanyCompany or any of the Subsidiaries; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonPerson (other than to wholly-owned Subsidiaries in the Ordinary Course of Business);
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company or any of the Subsidiaries;
(ivviii) acquire any material properties or assets (whether tangible or intangible) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration whether tangible or intangible) of the Company and the Subsidiaries, other than in the Ordinary Course of Business) of Business or in connection with the CompanyPre-Sale Reorganisation;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company or any of the Subsidiaries except in the Ordinary Course of Business;
(viixi) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of $50,000 for any individual commitment and $100,000 for all commitments in the aggregate;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company or any Employeeof the Subsidiaries;
(viiixiii) introduce any material change with respect to the operation of the BusinessCompany or any of the Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, permit the Company or any of the Subsidiaries to make any investments in or loans to, or pay any fees or expenses to, or enter into any transaction or enter into, modify or renew any Contract which by reason with any Affiliate of the Company or any of the Subsidiaries, or any director, officer or employee of the Company or any of the Subsidiaries;
(xv) make a change in its size accounting or otherwise is not Tax reporting principles, methods or policies other than in the Ordinary Course of Business;
(xxvi) other than in the Ordinary Course of Business, make or revoke any material Tax election, or settle or compromise any material Tax liability or enter into a settlement or compromise with respect thereto, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes;
(xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco the Company or Purchaser, any of the Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixviii) terminate, amend, restate, supplement or waive any rights under any (A) Permit, Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) PermitBusiness;
(xiixix) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiiixx) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;; |
(xivxxi) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;; and
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxii) agree to do anything (A) prohibited by this Section 6.2, 7.2(b) or (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffect.
Appears in 1 contract
Sources: Share Purchase Agreement (Altra Industrial Motion, Inc.)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as set forth on Schedule 8.2, (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Company shall:
(i) conduct the Business business of the Company only in the Ordinary Course of BusinessBusiness and not introduce any new method, or discontinue any existing method, of operation or accounting;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Company, and (B) preserve the present relationships with Persons having business dealings with suppliers of the Company (including customers and suppliers)Company;
(iii) maintain (A) all of its properties and facilities, including those held under the assets Real Property Leases, in as good working order and properties ofcondition as at present, or used by, the Company consistent with past practice, ordinary wear and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementtear excepted;
(iv) file on a timely basis (Aor properly file for extensions) maintain all notices, reports or other filings required to be filed with or reported to any Governmental Body with respect to the books, accounts and records continuing operations of the Company Company; and
(v) perform in all material respects in the Ordinary Course of Business, (B) continue to collect accounts receivable its obligations under all Material Contracts and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan terms and conditions of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts all licenses and at the times set forth in such plan;
(vi) comply in all material respects with Permits and all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoingExcept (I) as set forth on Schedule 8.2, except (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement (including the Conversion) or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not:
(i) declare, set aside, make or pay any dividend or other distribution (other than the distribution of Excess Cash to Holdings as contemplated herein or the payment of inter-company Liabilities) in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(v) other than as required by Law or any written Contract or Company Plan (as disclosed in Schedule 5.14(a)) (A) increase the salary or other annual level of compensation of any director director, officer, employee, consultant or Employee agent of the Company except for normal year-end increases other than in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director, officer, employee, consultant or directoragent, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Company Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director or make any dividend or distribution of cash or other property with respect to the units or other equity interests executive officer of the Company;
(iivi) subject to any Lien, any of the properties or assets (Awhether tangible or intangible) of the Company, except for Permitted Exceptions;
(vii) acquire any properties, rights or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the properties, rights or assets of the Company (except as contemplated by (i) above or pursuant to an existing Contract for fair consideration in the Ordinary Course of Business or for the purpose of disposing of obsolete or worthless assets) to any Person, including S▇▇▇▇▇▇, Holdings or any Affiliate thereof;
(viii) modify, amend, terminate any of the existing Real Property Leases or enter into any construction contracts with respect to improvements or alterations with respect to any of the Real Property Leases for an amount in excess of $75,000;
(ix) cancel or compromise any material debt or claim or waive or release any right of the Company;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company;
(xi) permit the Company to enter into or agree to enter into any merger or consolidation with any Person;
(xii) make or rescind any material election relating to Taxes, or settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes;
(xiii) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except indebtedness for borrowed money (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in excess of such amount set forth on the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person);
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiv) enter into any transaction or enter into, modify Contract relating primarily to the Company involving obligations or renew any Contract which by reason payments in excess of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business $75,000 in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementyear; or
(xviixv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.
Appears in 1 contract
Sources: Unit Purchase Agreement (Simmons Co)
Conduct of the Business Pending the Closing. (a) Except From the date hereof and until the Closing (the “Pre-Closing Period”), except (A) as set forth on Schedule 7.2(a), (B) as required by applicable Law, including Applicable Competition Laws, (C) as otherwise expressly provided contemplated by this Agreement or (D) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned):
(i) Sellers shall cause each of the date hereof and the Closing, the Company shallAcquired Companies to:
(iA) conduct the Business only in the Ordinary Course of Business;
(iiB) use its commercially reasonable efforts to preserve its current operations, organization and goodwill, including its Intellectual Property and current relationships with customers, suppliers and key employees (it being understood that such efforts will not include any requirement or obligation to pay any consideration not otherwise required to be paid by the terms of an existing Contract or to offer or grant any financial accommodation or other benefit not otherwise required to be made by the terms of an existing Contract); and
(C) use its commercially reasonable efforts to implement (I) the capital projects listed on Schedule 7.2(a)(i)(C) substantially in accordance with the quarterly capital expenditure forecast set forth on such Schedule 7.2(a)(i)(C), subject to such changes and delays that ordinarily arise in connection with projects of such nature and (II) following the first calendar quarter of 2019, capital projects in the Ordinary Course of Business, which, with respect to “EHS” and “Sustaining”, would normally be expected to require annual capital expenditures of approximately $1,000,000 in the aggregate; and
(ii) Sellers shall cause each of the Acquired Companies not to:
(A) preserve the present business operationsdeclare, organization set aside, make or pay any dividend or other distribution (including officers and Employeesother than cash) and goodwill in respect of the Company and Acquired Companies Equity Interests or repurchase, redeem or otherwise acquire any outstanding Equity Securities in any Acquired Company;
(B) preserve the present relationships with Persons having business dealings with the issue or sell any Equity Securities of any Acquired Company (including customers and suppliers)or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Securities of any Acquired Company;
(iiiC) maintain (A) all effect any recapitalization, reclassification or like change in the capitalization of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementany Acquired Company;
(ivD) amend the Organizational Documents of any Acquired Company;
(E) (A) maintain make any change (or file any such change) in any method of Tax accounting, (B) make, change or rescind any Tax election; (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes; (D) file any amended Tax Return or claim for refund; (E) enter into any closing or similar agreement with a Tax Authority; or (F) waive or extend the booksstatute of limitations in respect of Taxes, accounts and records but in each case, if such action relates to a Tax group which includes the Acquired Companies, then the Acquired Companies shall be restricted only to the extent reasonably expected to increase the Tax Liability of Purchaser or its Affiliates (including the Acquired Companies) for a Tax period (or portion thereof) that begins after the Closing Date;
(F) (I) increase the annual level of compensation of any employee of any Acquired Company other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (BII) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directoremployee of any Acquired Company, (CIII) materially increase the coverage or benefits available under any (or create any new) severance payCompany Benefit Plan, termination pay(IV) enter into any agreements or commitments (or amend any such agreements or commitments) of the type that would be required to be disclosed on Schedules 5.14(a), vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus 5.14(b) or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for5.14(c) if they were in effect as of the date hereof, or with any (V) other than in the Ordinary Course of the directorsBusiness, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition consulting or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the any Acquired Company is a party; , except, in each case, as required by applicable Law or (E) pay or make the terms of any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyCompany Benefit Plan;
(iiG) (AI) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect other than as may be necessary to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except fill vacant positions in the Ordinary Course of Business, payhire or offer to hire any new employee, prepay(II) other than for cause, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by terminate the Company; (C) materially modify the terms employment of any Indebtedness or other Liability; employee, or (DIII) make institute any loans, advances general layoff of capital contributions to, employees or investments in, implement any other Personearly retirement plan or announce the planning of any such action;
(iiiH) subject any of the properties or assets (whether tangible or intangible) of any Acquired Company to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivI) (I) other than in the Ordinary Course of Business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets properties or assets of any Acquired Company or (except for fair consideration II) acquire any ownership interest in the Ordinary Course of Business) of the Companyreal property;
(vJ) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make cancel or compromise any change in product specifications material claim or prices or terms right of distributions of such productsany Acquired Company;
(ixK) enter into any transaction commitment for capital expenditures of any Acquired Company in excess of €1,000,000 for all commitments in the aggregate, other than reasonable capital expenditures in connection with any emergency or enter into, modify or renew any Contract which by reason of its size or otherwise is not force majeure events affecting such Acquired Company;
(L) other than in the Ordinary Course of Business;
, (xI) enter into modify or terminate any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property LicenseMaterial Contract or (II) enter into, modify or terminate any Contract that if in effect on the date of this Agreement would have been required to be listed on Schedule 5.9(a), Schedule 5.10(b) or Schedule 5.12(a);
(M) permit any Acquired Company to enter into or agree to enter into any merger, consolidation, joint venture or similar business combination transaction with any Person, or acquire the Equity Securities of any other Person;
(N) other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise permit the creation of any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementnew Company Guarantee; or
(xviiO) agree to do anything (A) prohibited by this Section 6.27.2(a)(ii).
(b) During the Pre-Closing Period:
(i) at the request of Purchaser delivered reasonably in advance of the Closing (or, if later, in the case of clause (B), delivered within reasonable time of any notification of Purchaser contemplated therein), Sellers shall, and shall cause their respective Affiliates (including the Acquired Companies) to, use commercially reasonable efforts to cause the assignment to the German Company, before or effective as of the Closing, of (A) any Contract listed under “Potential Assignment of Contracts” on Schedule 7.2(b) or (B) any other Contract that would make may be identified after the date hereof to which any of them, but not an Acquired Company, is a party and which is used solely in the representations and warranties conduct of the Business (excluding, for the avoidance of doubt, any Contract related to (I) items identified on Schedule 5.18(b) as not being available for use by the Business after the Closing or (II) Intellectual Property owned by GP Nonwovens or its Affiliates immediately after Closing and not licensed or obligated to be assigned to an Acquired Company under an IP Agreement);
(ii) at the request of Purchaser delivered reasonably in advance of the Closing (or, if later, in the case of clause (B), delivered within reasonable time of any notification of Purchaser contemplated therein), Sellers shall, and shall cause their respective Affiliates (including the Acquired Companies) to, use commercially reasonable efforts to cause the German Company to, before or effective as of the Closing, enter into a standalone Contract substantially comparable to (A) any Contract listed under “Potential Entry of Standalone Contracts” on Schedule 7.2(b) or (B) any other Contract that may be identified after the date hereof to which any of them, but not an Acquired Company, is a party and which is used in the conduct of the Business and other businesses of Sellers and their respective Affiliates (other than the Acquired Companies) (excluding, for the avoidance of doubt, any Contract related to (I) items identified on Schedule 5.18(b) as not being available for use by the Business after the Closing or (II) Intellectual Property owned by GP Nonwovens or its Affiliates immediately after Closing and not licensed or obligated to be assigned to an Acquired Company under an IP Agreement); and
(iii) Sellers shall, and shall cause their respective Affiliates (including the Acquired Companies) to, use commercially reasonable efforts to cause the German Company to, before or effective as of the Closing, be removed as a party to and, at the request of Purchaser delivered reasonably in advance of the Closing, enter into a standalone Contract substantially comparable to (A) any Contract listed under “Separation of Contracts” on Schedule 7.2(b) or (B) any other Contract that may be identified after the date hereof to which any of them (other than an Acquired Company) and an Acquired Company, are parties and which is used in the conduct of the Business and the other businesses of Sellers and their respective Affiliates (with respect to entry into a standalone Contract, excluding, for the avoidance of doubt, any Contract related to (I) items identified on Schedule 5.18(b) as not being available for use by the Business after the Closing or (II) Intellectual Property owned by GP Nonwovens or its Affiliates immediately after Closing and not licensed or obligated to be assigned to an Acquired Company under an IP Agreement).
(c) Prior to the Closing, (i) Buckeye Germany shall enter into the Copyright Assignment Agreement with the German Company in exchange for a payment by the German Company of cash or a cash receivable in an amount equal to the Estimated Buckeye Germany IP Value and (ii) GP Nonwovens shall enter into the GP Nonwovens IP Agreements with the German Company in exchange for a payment by the German Company of cash or a cash receivable in an amount equal to the Estimated GP Nonwovens IP Value, in each case, which amount shall be subject to adjustment post-Closing (the “IP Value Adjustment”). At the Closing, the German Company shall be deemed to have assigned its rights and obligations under the IP Value Adjustment to Buckeye Germany.
(d) Nothing contained in this Section 7.2 or elsewhere in this Agreement is intended to give Purchaser, directly or indirectly, the right to control or direct the Business or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions portion thereof prior to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect Closing. Prior to the CompanyClosing, the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except Subject to the terms and conditions of the Interim Agreement, during the period from the date hereof through and including the Closing, except (i) as otherwise expressly set forth in Section provided by in this Agreement Agreement, or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shallSeller shall use commercially reasonable efforts to:
(iA) conduct operate the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iiiI) maintain (A) all of the assets and properties of, or used by, the Company Purchased Assets consistent with past practice, ordinary wear and tear excepted and (BII) maintain commercially reasonable insurance upon all of coverage in place with respect to the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this AgreementPurchased Assets;
(ivC) perform when due all material obligations under the Assigned Contracts, the Purchased Intellectual Property Licenses, the Purchased Real Property Leases and the Purchased Personal Property Leases except to the extent such performance is excused under the Bankruptcy Code or by order of the Bankruptcy Court;
(AD) maintain the books, accounts books and records of the Company Business in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(vE) comply with maintain the capital expenditure plan of Permits applicable to the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapseBusiness; and
(viiiF) retain staff employed in the Business with the goal of maintaining the ongoing operation thereof. In connection with such efforts, however, Seller will not be obligated to make any retention or severance payments or pay all maintenance and similar fees and take all any other appropriate actions as necessary to prevent the abandonment, loss amounts or impairment of all Intellectual Property of the Companyincur any other obligations.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by from the date of this Agreement or with through and including the prior written consent of NewcoClosing, the Company Seller shall not:
, except (i) as set forth in Section
(A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases than in the Ordinary Course of Business, including, but not limited to, as may be required by a collective bargaining agreement, (BI) materially increase the annual level of compensation of any Employee, (II) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee Employee, or director(III) with respect to any Employee, (C) increase the coverage or benefits available under any (or create any new) severance payPlan except, termination payin each case, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus as required by applicable Law from time to time in effect or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with by any of the directors, officers, Employees, agents Plans or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee pension plans maintained by Seller;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree pursuant to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any an existing Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle for the purpose of disposing of obsolete or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementworthless assets); or
(xviiC) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.
Appears in 1 contract
Sources: Asset Purchase Agreement
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shallSeller shall and Parent shall cause Seller to:
(i) conduct the Business only in the Ordinary Course ordinary course of Businessbusiness;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employeesemployees) and goodwill of the Company Seller and (B) preserve the present relationships with Persons persons having business dealings with the Company Seller (including customers and suppliers);
(iii) except for the sales of assets in the ordinary course of Seller’s business, maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceSeller in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the assets and properties of the Company Seller in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Seller in the Ordinary Course ordinary course of Businessbusiness, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the CompanySeller;
(v) comply with the capital expenditure plan of Seller for the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)current fiscal year, including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of Property; and
(viii) cause B&B Roadway to comply with the Companycovenants in clauses (i) through (vii) with reference to B&B Roadway.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoBuyer, the Company Seller shall notnot and Parent shall not permit Seller to:
(i) (A) increase the salary or other compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessSeller, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan Employee Benefit Plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Seller or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company Seller (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company);
(ii) make, change or revoke any material Tax election, settle or compromise any material Tax claim or liability or enter into a settlement or compromise, or change (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect make a request to (whether directly, contingently or otherwiseany taxing authority to change) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course material aspect of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course its method of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;accounting for Tax purposes,
(iii) subject to any Lien or otherwise encumber or, except for Permitted ExceptionsLiens, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of Seller or its subsidiaries;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Acquired Assets (except for fair consideration in the Ordinary Course ordinary course of Business) of the Companybusiness);
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother person;
(vi) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Seller except in the Ordinary Course ordinary course of Businessbusiness;
(vii) enter into any commitment for capital expenditures in excess of $5,000 for any individual commitment and $10,000 for all commitments in the aggregate;
(viii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeemployee;
(viiiix) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course ordinary course of Businessbusiness, make any change in product specifications or prices or terms of distributions of such products;
(ixx) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course ordinary course of Businessbusiness;
(xxi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or PurchaserBuyer, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Assumed Contract or Real Property Lease, Personal Property Lease (or Intellectual Property License, other than in the Ordinary Course of Business enter into a new lease) or (B) Permit;
(xiixiii) settle or compromise any pending or threatened Legal Proceeding legal proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,0005,000;
(xiiixiv) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixv) agree to do anything (A) prohibited by this Section 6.24.1, (B) that which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Security Systems Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between The Seller agrees that ------------------------------------------- from the date hereof and through the ClosingClosing Date, the Company shall:
(i) conduct the Business will be conducted only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers usual and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company ordinary course consistent with past practice, and and, except as may be permitted by this Agreement, or as otherwise shown on Schedule 4.03 or ------------- approved in writing in advance by the Purchaser, which consent shall not be unreasonably withheld, the Seller agrees from the date hereof until the Closing as follows:
(Ba) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable The Seller will, so far as it is within its power to that in effect do so, carry on the date Business substantially in a manner that is consistent with the manner in which the business has heretofore been conducted, and the Seller shall not institute any new methods of this Agreement;
(iv) (A) maintain the booksacquisition, accounts and records of the Company production, marketing, distribution, sale, lease, license, management, operation, or engage in any transaction or activity, enter into any agreement or make any commitment, except in the Ordinary Course ordinary course of Business, (B) continue to collect accounts receivable business and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply consistent with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companypast practice.
(b) Without limiting The Seller shall not institute any new methods of accounting.
(c) The Seller shall use commercially reasonable efforts to preserve the generality Business intact, to maintain, protect and preserve the Acquired Assets in at least as good condition as of the foregoingdate hereof (reasonable wear and tear excepted), except and preserve intact the organization and good will of the Business and its relationships with licensors, suppliers, distributors, customers, contractors and employees.
(d) Except as otherwise expressly provided by specifically permitted pursuant to this Agreement or with the prior written consent of NewcoAgreement, the Company Seller shall not:
(i) (A) increase borrow or agree to borrow any funds except as necessary to conduct the salary Business until the Closing Date or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonusincur, benefit or other direct assume or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made become subject to, forwhether directly or by way of guarantee or otherwise, any obligation or liability (absolute or contingent), except in the case of clause (B) obligations and liabilities incurred in the ordinary course of business and consistent with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companypast practice;
(ii) (A) create, incur, assume, guarantee, endorse permit or otherwise become liable or responsible with respect allow any of the Acquired Assets to (whether directly, contingently or otherwise) be subjected to any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms Encumbrance of any Indebtedness kind or other Liability; or description (D) make any loans, advances of capital contributions to, or investments in, any other Personexcept Encumbrances created by law and Permitted Encumbrances);
(iii) subject to declare any Lien dividend or otherwise encumber or, except for Permitted Exceptions, permit, allow make any payment or suffer to be subjected to any Lien or otherwise encumbered, any distribution of property of the Purchased AssetsSeller;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of or permit to lapse any rights to the use of any Intellectual Property (and the Purchased Assets (Seller shall take all commercially reasonable actions in respect of any infringement of any Intellectual Property of which it has knowledge), or dispose of or, except for fair consideration in the Ordinary Course ordinary course of Business) business, disclose to any Person any trade secret, formula, process or know-how not theretofore a matter of the Companypublic knowledge ;
(v) except as provided make any single capital expenditure or future commitment in Section 6.6 hereofexcess of$10,000 for additions to property, enter into plant or agree equipment or make aggregate capital expenditures or future commitments in excess of$10,000 for additions to property, plant or equipment;
(vi) pay, loan or advance (other than in the ordinary course of business consistent with past practices) any amount to, or sell, transfer or lease any Acquired Assets to, or enter into any merger agreement or consolidation with arrangement with, any PersonAffiliate of the Seller;
(vii) change any of the Seller's banking or safe deposit arrangements;
(viii) grant or extend any power of attorney or act as guarantor, and not engage in any new business or invest insurety, make a loanco-signer, advance or capital contribution toendorser, co-maker, indemnitor or otherwise acquire in respect of the securities obligation of any Person;
(viix) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, make distribute any change in product specifications or prices or terms property to any employee of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of BusinessSeller;
(x) enter into grant to any Contractofficer or employee any increase in compensation or benefits, understanding other than increases in compensation or commitment that restrains, restricts, limits or impedes benefits for employees in the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line ordinary course of business consistent with past practice and not in any geographic area or solicit the employment excess of any personsfive percent (5%);
(xi) terminatepay any pension, amendretirement allowance or other employee benefit not required by any plan, restate, supplement policy or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;program identified on Schedule 5.21 hereto; -------------
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims foradopt, agree to adopt, or that would result make any announcement regarding (x) the adoption of any new pension, retirement or other employee benefit plan, policy or program, or (y) adoption of any amendments to any existing plan, policy or program identified on Schedule 5.21 unless ------------- otherwise required by applicable law; or
(xiii) agree, whether in writing or otherwise, to do any of the foregoing.
(e) From the date hereof through the Closing Date, the Seller shall give prompt written notice to the Purchaser of any material casualty losses or damages with respect to the Acquired Assets (whether or not any such loss or damage shall have been covered by insurance) and, if such loss is insured, the Seller shall promptly notify the carrier and make a loss claim.
(f) No contract or commitment will be entered into, and no purchase of revenue supplies and no sale of any of the Seller's assets will be made, by or on behalf of the Seller, except (i) normal contracts or commitments for the purchase of, an amount that couldand normal purchases of, individually supplies or inventory or for the sale of inventory, in each case made in the aggregateordinary course of business and consistent with past practice, (ii) other contracts, commitments, purchases or sales in the ordinary course of business and consistent with past practice; and (iii) contracts and commitments required under this Agreement and the Related Documents.
(g) The Seller shall maintain the insurance set forth on Schedule -------- 5.16 hereto and all property insured thereby shall be used, operated, maintained ---- and repaired in the ordinary course of business consistent with past practice.
(h) The Seller shall not do any act or omit to do any act, or permit any act or omission to act (to the extent the Seller has control over such act or omission), which will cause a breach of any material contract or commitment of the Seller or which would reasonably be expected to be greater than $50,000;cause the breach by the Seller of any representation, warranty, covenant or agreement made hereunder.
(xiiii) change or modify The Seller shall duly comply in all material respects with all laws applicable to it and the Acquired Assets, Business and its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;employees.
(xivj) take any action which would adversely affect the ability The Seller shall file when due all federal, state, local and foreign Tax Returns and amendments thereto required to be filed by it and shall pay all Taxes shown as due and payable thereon. All returns and reports in respect of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts employee withholdings, FICA, unemployment and other terms similar items and other applicable taxes shall be timely made as shall all deposits and payments due in effect on the date respect of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations such taxes and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyobligations.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement and the schedules attached hereto or with the prior written consent of Purchaser, the Company shall and Seller shall cause the Transfer Group Companies to (subject to the limitations imposed on Seller as a result of having filed petitions for relief under the Bankruptcy Code) use their reasonable best efforts to conduct their respective businesses in all material respects in the Ordinary Course of Business, and preserve and maintain in all material respects the present business operations, organization and goodwill of the Transfer Group Companies. For the avoidance of doubt, the foregoing shall not require Seller or any of the Transfer Group Companies to make any payments, incur any costs or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence or other action is required by Applicable Law, by contractual obligation with such third parties or to operate such business in the Ordinary Course of Business.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof conditioned or delayed), each of Seller and the ClosingCompany shall not, in the case of Seller, subject to the limitations imposed on Seller as a result of having filed petitions for relief under the Bankruptcy Code, and shall cause each Transfer Group Company shallnot to:
(i) conduct except as otherwise permitted under Section 6.2(c), declare, set aside, make or pay any dividend or other distribution in respect of the Business only in capital stock of the Ordinary Course Transfer Group Companies or repurchase, redeem or otherwise acquire any outstanding shares of Businessthe capital stock or other securities of, or other ownership interests in, the Transfer Group Companies;
(ii) use its commercially reasonable efforts to (A) preserve the present business operationsexcept as otherwise permitted under Section 6.2(c), organization (including officers and Employees) and goodwill transfer, issue, sell or dispose of any shares of capital stock or other equity securities of the Company and (B) preserve Transfer Group Companies or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the present relationships with Persons having business dealings with capital stock or other equity securities of the Company (including customers and suppliers)Transfer Group Companies;
(iii) maintain (A) all except as otherwise permitted under Section 6.2(c), effect any recapitalization, reclassification, stock split or like change in the capitalization of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this AgreementTransfer Group Companies;
(iv) (A) maintain amend the bookscertificate of incorporation or bylaws of any Transfer Group Company in any way; provided, accounts and records of however, that the Company may (i) restate its articles of incorporation in a manner that does not effect any substantive modifications to the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, provisions thereof and (Cii) comply with all contractual effect amendments to its bylaws that are not material and other obligations of the Company;that are intended to reflect changes in Applicable Law.
(v) comply with except as provided under the capital expenditure plan of the Company for 2009 Portland General Holdings, Inc. Involuntary Severance Plan, as set forth on Schedule 6.2(b)(v) or as would not create or increase any Liability of any Transfer Group Company Disclosure Schedule 6.2(a)(v)beyond any amount reflected on the Balance Sheet, including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other annual level of compensation of any director or Employee employee of the a Transfer Group Company except for normal year-end (other than increases in the Ordinary Course of Business), (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant of the Transfer Group Companies, (C) other than in the Ordinary Course of Business, increase the coverage or benefits available under any any, or, except as permitted under clause (or D), create any new) , severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any employee, director or officer of the directors, officers, Employees, agents or representatives of the Company Transfer Group Companies or otherwise materially modify or amend or terminate any such plan or arrangement arrangement, or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except than in the Ordinary Course of Business, payenter into, prepayor amend any existing, accelerateemployment, dischargedeferred compensation, purchaseseverance, repurchase consulting, or satisfy similar agreement to which any Indebtedness issued Transfer Group Company is or guaranteed would be a party or involving a director, officer or employee of the Transfer Group Companies; provided that no such agreement (i) shall provide for a term in excess of one (1) year, or in the case of an amendment to any such agreement, increase an existing term by more than one (1) year, or (ii) increase compensation or other payments in excess of $300,000, or, in the Company; case of an amendment to any such agreement, materially increase compensation if such compensation exceeds $300,000 per year;
(vi) except as set forth on Schedule 6.2(b)(vi), and except for (A) trade payables, (B) indebtedness under any line of credit existing as of the date hereof or any new line of credit established to refinance any such existing line of credit (provided that the aggregate principal amount at any time outstanding under all lines of credit shall not be greater than the aggregate principal amount that could be borrowed under all lines of credit as of the date hereof plus $50 million, and provided further that with respect to any such refinanced line of credit, the expiration of the line of credit refinanced thereunder shall not be materially shorter than the expiration of the line of credit so refinanced), (C) long-term indebtedness for borrowed money incurred after the date hereof in an aggregate principal amount outstanding at any time not to exceed $150 million (provided that, to the extent such indebtedness is used to refinance outstanding indebtedness, the scheduled maturities of amounts borrowed shall not be materially modify shorter than the terms scheduled maturities of any Indebtedness or other Liability; or the indebtedness so refinanced), (D) make other indebtedness for borrowed money and guarantees incurred after the date hereof in an aggregate principal amount not to exceed $5 million at any loanstime, advances and (E) indebtedness incurred to refinance indebtedness outstanding on the date hereof or otherwise permitted under this Section 6.2(b)(vi) (provided that, except as provided in clause (B) and (C) above, the aggregate principal amount of such refinancing indebtedness shall not be greater than the aggregate principal amount of the indebtedness so refinanced, and provided further that with respect to any such refinancing indebtedness, the scheduled maturities of amounts borrowed shall not be materially shorter than the scheduled maturities of the indebtedness so refinanced), (1) incur or assume any long-term or short-term indebtedness (other than trade payables), (2) issue any debt securities, (3) issue or assume any obligations as the deferred purchase price of property, conditional sale obligations or any obligations under any title retention agreement (other than trade accounts payable in the Ordinary Course of Business), (4) enter into any capital contributions toleases, operating leases, or investments inany synthetic or off-balance sheet leases or any agreement for the use or possession of property creating obligations that, in the case of any item covered by this clause (4), do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person, or (5) become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any Person other Personthan a Transfer Group Company in connection with obligations otherwise permitted hereunder (obligations of the types referred to in clauses (1) through (5) above are referred to herein collectively as "Restricted Indebtedness"); provided that, notwithstanding anything in this Agreement to the contrary (including anything in the foregoing clauses or the schedules hereto), as of the Closing, the sum of (w) the aggregate amount of all Restricted Indebtedness of the Transfer Group Companies then outstanding, plus (x) the stated value of the Company's preferred stock and all accrued and unpaid dividends thereon, less (y) the Transfer Group Companies' cash on hand, less (z) the amount of cash dividends paid by the Company to Seller from and after the date hereof, shall not exceed $900 million in the aggregate;
(iiivii) except as set forth on Schedule 6.2(b)(vii), (x) subject the Shares to any Lien Lien, or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, (y) subject any of the Purchased Assets;
(iv) acquire any material properties or assets (whether tangible or intangible) of the Transfer Group Companies to any Lien other than, in the case of this clause (y), Permitted Exceptions; provided that notwithstanding anything in this Section 6.2 to the contrary, at the Closing, the Shares shall be delivered to Purchaser free and clear of any and all Liens (other than Liens created by Purchaser) in accordance with Section 363 of the Bankruptcy Code;
(viii) except as set forth on Schedule 6.2(b)(viii) or as otherwise permitted pursuant to this Section 6.2(b), (A) acquire any properties or assets other than in the Ordinary Course of Business, except for such acquisitions of properties or assets with a fair market value of up to $10 million in the aggregate or (B) sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) material properties or assets of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, Transfer Group Companies other than in the Ordinary Course of Business, make except for any change such dispositions of properties or assets with a fair market value of up to $10 million in product specifications or prices or terms of distributions of such productsthe aggregate;
(ix) enter into or terminate prior to its stated expiration any transaction labor or enter intocollective bargaining agreement of the Transfer Group Companies; provided that nothing in this Section 6.2(b)(ix) shall prohibit any of the Transfer Group Companies from extending any collective bargaining agreement that otherwise would expire, modify or renew from entering into a new collective bargaining agreement in connection with any Contract which by reason of its size such expiration; provided that any such agreements do not have, and would not reasonably be expected to have, individually or otherwise is not in the Ordinary Course of Businessaggregate, a Transfer ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect;
(x) enter into except as set forth on Schedule 6.2(b)(x), as provided in Section 6.13 or Section 6.14 or with respect to refinancings contemplated in Section 6.2(b)(vi), repurchase, discharge or satisfy any Contractclaim, understanding debt or commitment that restrainsobligation (or group of related claims, restricts, limits debts or impedes the ability obligations) of any of the BusinessTransfer Group Companies in an amount in excess of $5 million, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any other than (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permitpursuant to the terms of any Contract as in effect on the date hereof or permitted to be entered into hereafter;
(xi) subject to Section 6.4(b), permit any of the Transfer Group Companies to enter into, or agree to enter into, any merger or consolidation with, any corporation or other entity;
(xii) settle except as set forth on Schedule 6.2(b)(xii) or compromise as required under GAAP, make any pending or threatened Legal Proceeding or change in any claim or claims for, or that would result in a loss method of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000accounting for financial reporting purposes;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts except as set forth on the Balance Sheet except Schedule 6.2(b)(xiii) in the Ordinary Course of Business under loan or credit agreements as expressly contemplated hereby, make any filings with or arrangements up commence any proceedings against or before a Governmental Authority;
(xiv) pursuant to or within the meaning of the Bankruptcy Code or any similar federal, state or foreign law for the relief of debtors, commence a voluntary case, consent to the entry of an Order for relief against the Company or any other Transfer Group Company in an involuntary case, consent to the appointment of a receiver, trustee, assignee, liquidator or similar official of it or for all or any material portion of its property or assets, or make a general assignment for the benefit of Seller's creditors;
(xv) except as set forth on Schedule 6.2(b)(xv), make any material Tax elections with respect to the Transfer Group Companies (other than elections that must be made periodically which are consistent with past practice);
(xvi) except as set forth on Schedule 6.2(b)(xvi), enter into any agreement or settlement with any Taxing Authority with respect to any material Tax item directly related to a Transfer Group Company;
(xvii) except as disclosed on Schedule 6.2(b)(xvii), make or agree to make any capital expenditure; provided that disclosure on Schedule 6.2(b)(xvii) notwithstanding, no expenditure shall be made, construction undertaken or obligation entered into with respect to the Company's planned Port Westward project (other than expenditures or obligations that in the aggregate would not exceed $5,000,000) until such time as an Integrated Resource Plan (or any Action Plan related to such Integrated Resource Plan) contemplating such expenditure, construction or obligation has been filed by the Company and been the subject of an acknowledgement order by OPUC;
(xviii) except as disclosed on Schedule 6.2(b)(xviii), enter into any power, capacity, fuel, transmission or transportation purchase, forward, option, swap or futures contract, including any derivative contract (in any case, whether for non-trading or trading purposes), except for any contract (i) contemplated by an Integrated Resource Plan (or any Action Plan related to such Integrated Resource Plan) that has been filed by the Company and been the subject of an acknowledgement order by OPUC or (ii) that does not exceed twenty-four months in duration and does not cause the Company's Value at Risk to exceed the Company's maximum amounts Value at Risk guidelines as authorized by the Board of Directors of the Company and other terms as in effect on the date hereof. Seller will cause the Company to use its reasonable best efforts to cause any such new agreements entered into by any Transfer Group Company pursuant to this clause (xviii) to contain provisions permitting assignment to wholly owned subsidiaries. Specific transactions executed under enabling agreements will not themselves constitute "agreements" for the purposes of the immediately preceding sentence.
(c) The restrictions contained in subsections (a) and (b) of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.26.2 shall not in any way prohibit, (B) that would make limit or restrict, any of the representations and warranties following: (i) dividends by a direct or indirect wholly-owned subsidiary of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company, or another direct or indirect wholly-owned subsidiary of the Company, (ii) dividends on the Preferred Stock outstanding on the date hereof; (iii) dividends on or repurchases of Shares to the extent that (x) such dividends or repurchases result in a reduction in the Purchase Price (or such distributions are made pursuant to Section 6.9(i) in a case in which the Purchase Price is not reduced due to the fact that the relevant intercompany account has been written down to zero) and (y) such dividends or repurchases are permissible under Order No. 97-196 entered by the Commission on June 4, 1997 in OPUC Docket 814 and the stipulation related thereto; (iv) redemptions of Preferred Stock pursuant to its terms, including any sinking fund requirements; (v) payments by any Transfer Group Company to Seller or its Affiliates in respect of intercompany payables or accounts or their liability to Seller or its Affiliates on account of such Transfer Group Company being a member of Seller's affiliated group for federal income tax purposes and, if applicable, any similar consolidated, combined or unitary group for state income tax purposes; or (vi) any actions by the Company to close any open Merchant Book trading position in accordance with Section 6.18 or to close, in the Ordinary Course of Business, any position maintained in the Company's retail (non-trading) electric utility business.
(d) Prior to the Closing, Seller shall keep Purchaser reasonably apprised of the status of, and all other material matters relating to, the construction and operation of new generation or transmission facilities by any Transfer Group Company and shall consult with Purchaser in good faith regarding all such material matters, including, without limitation, regulatory matters relating to, and material agreements and expenditures in connection with, such construction and operation; provided that Seller shall not be required to take any such action to the extent it would be excused from doing so pursuant to the proviso to Section 6.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.2(a), (ii) as otherwise expressly provided contemplated by this Agreement or (iii) with the prior written consent of Newco, between the date hereof and the ClosingAcquiror , the Company shall:
(iA) conduct the Business respective businesses only in the Ordinary Course of Business;
(iiB) use its commercially reasonable efforts to (Axx) maintain working capital of the Company (excluding CareScience) at levels consistent with past practice and (yy) maintain a Cash balance at the Effective Time in excess of $48,000,000;
(C) pay its debts and Taxes when due, in each case subject to good faith disputes over such debts or Taxes; and
(D) use its commercially reasonable efforts to preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoingExcept (i) as set forth on Schedule 7.2(b), except (ii) as otherwise expressly provided contemplated by this Agreement or (iii) with the prior written consent of NewcoAcquiror, the Company shall not:
(i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation distribution in respect of any director or Employee the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(B) issue or sell any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(C) effect any recapitalization, reclassification or like change in the capitalization of the Company, except for normal yearto the extent required by Law;
(D) amend the articles of incorporation or by-end increases laws or comparable organizational documents of the Company;
(E) other than in the Ordinary Course of BusinessBusiness or as required by Law or Contract, (B1) increase the annual level of compensation of any Employee, (2) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C3) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D4) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition competition, retention or similar agreement or arrangement with any directors or officers of the Company Employee, (or amend any such agreement) to which the Company is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) Employee except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivF) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business or for the purpose of disposing of obsolete or worthless assets);
(G) other than in the Ordinary Course of Business) , cancel or compromise any material debt or claim or waive or release any material right of the Company;
(vH) except as provided in Section 6.6 hereofenter into, modify, extend or terminate any labor or collective bargaining agreement;
(I) enter into or agree to enter into any merger or consolidation with any other Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise agreement to acquire the securities of any other Person;
(viJ) other than in the Ordinary Course of Business, cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course of BusinessCompany;
(viiK) enter into, modify except to the extent required by Law or terminate any labor or collective bargaining agreement or, through negotiation or otherwiseGAAP, make any commitment or incur any Liability material change to any labor organization with respect to any Employeeof its methods of accounting or methods of reporting revenue and expenses or accounting practices;
(viiiL) introduce make any material change with respect to the operation of the Business, including any material change new capital expenditures exceeding Twenty-Five Thousand and No/100 Dollars ($25,000.00) in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsaggregate;
(ixM) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business enter into, modify, amend or (B) Permitterminate any Material Contract;
(xiiN) (1) make, revoke or change any material Tax election or (2) settle or compromise any pending material federal, state, local or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000foreign income Tax liability;
(xiiiO) change participate or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past dueengage in any transaction that constitutes a “reportable transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(1) or fail to pay or delay payment of payables or other liabilities;
any transaction that constitutes a “listed transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2); (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviiP) agree to do anything (A) prohibited by this Section 6.2, 7.2(b); or
(BQ) take any action that would make any of the representations representation and warranties warranty of the Company in this Agreement or any of the Company Documents untrue or incorrect hereunder inaccurate in any material respect at, or could result as of any time prior to, the Effective Time or omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyat any such time.
Appears in 1 contract
Sources: Merger Agreement (Quovadx Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (1) as set forth on Schedule 8.2(a), --------------- (2) as required by applicable Law, (3) as otherwise expressly provided contemplated by this Agreement or (4) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), between the date hereof and the Closing, the Company Seller shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)suppliers of the Business;
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company act in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply accordance with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions Bankruptcy Court's compensation order attached hereto as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.Exhibit B. ---------
(b) Without limiting the generality of the foregoingExcept (1) as set forth on Schedule 8.2(b), except (2) as required by --------------- applicable Law, (3) as otherwise expressly provided contemplated by this Agreement or (4) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), the Company Seller shall not, as it relates to the Business:
(i) (A) increase the salary make or other compensation rescind any material election relating to Taxes, except as may be required by applicable Law or GAAP, make any material change to any of any director their methods of accounting or Employee methods of the Company except reporting income or deductions for normal year-end increases Tax or accounting practice or policy from those employed in the Ordinary Course preparation of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyits most recent Tax Returns;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) subject any Indebtedness except (u) of the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject Purchased Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iviii) acquire any material properties or assets that would be Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the CompanyAssets;
(viv) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother entity;
(viv) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Seller that constitutes a Purchased Asset except in the Ordinary Course of Business;
(vi) enter into any commitment for capital expenditures in excess of $15,000 for any individual commitment and $25,000 for all commitments in the aggregate;
(vii) hire any additional employees outside of the ordinary course of business or enter into, modify or terminate any labor labor, collective bargaining, employment or collective bargaining noncompete agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementorganization; or
(xviiviii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.8.2. -----------
Appears in 1 contract
Sources: Asset Purchase Agreement (Agway Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Seller, between prior to the date hereof and Closing the Closing, the Company Purchaser shall:
(i) conduct Conduct the Business businesses of the Purchaser only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Purchaser and (B) preserve the its present relationships relationship with Persons parties having business dealings with the Company (including customers and suppliers)Purchaser;
(iii) maintain Maintain (A) all of the assets and properties ofof the Purchaser in their current condition, or used by, ordinary wear and tear excepted and except for dispositions in the Company consistent with past practice, ordinary course of business and (B) insurance upon all of the properties and assets and properties of the Company Purchaser in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Purchaser in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Purchaser; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, prior to the Company Closing the Seller shall not, and shall cause the Purchaser not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Purchaser or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Purchaser;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Purchaser or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Purchaser;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Purchaser;
(iv) Amend the Articles of Incorporation or Bylaws of the Purchaser;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessPurchaser, (B) increase the annual level of compensation payable or to become payable by the Purchaser to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company Purchaser awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Purchaser or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Purchaser is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the CompanyPurchaser in his or her capacity as a director, officer or employee of the Purchaser;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother party, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, lien (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Purchaser;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyPurchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Purchaser except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures out of the ordinary course;
(xi) Permit the Purchaser to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Purchaser to enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, to or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000party;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Purchaser to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;any Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Documents other agreement referenced herein untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyClosing.
Appears in 1 contract
Conduct of the Business Pending the Closing. From the date hereof and until the Closing, except (aA) Except as set forth on Schedule 7.2, (B) as required by applicable Law, (C) as otherwise expressly provided contemplated by this Agreement or (D) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned):
(a) Seller shall cause each of the date hereof Company and the Closing, the Company shallSubsidiaries to:
(i) conduct the Business its respective business only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts to (A) preserve the its present business business, operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the its present relationships with Persons having business dealings with the Company (including customers and suppliers).
(b) Seller shall not and shall cause the Company and the Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution (other than cash) in respect of the membership interests in the Company or repurchase, redeem or otherwise acquire any outstanding units of membership interest or other ownership interests in, the Company or any of the Subsidiaries;
(ii) transfer, issue, sell or dispose of any units of membership interest or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire units of membership interest or other securities of the Company or any of the Subsidiaries;
(iii) maintain (A) all of effect any recapitalization, reclassification or like change in the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties capitalization of the Company in such amounts and or any of such kinds comparable to that in effect on the date of this AgreementSubsidiaries;
(iv) amend the Company’s certificate of formation or LLC Agreement or comparable organizational documents of any Subsidiary;
(Av) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment (A) materially increase the annual level of such accounts or Liabilities utilizing all available cash and compensation of any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan executive officer of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property any of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessSubsidiaries, (B) materially increase the annual level of compensation payable or to become payable by the Company or any of the Subsidiaries to any of their respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorexecutive officer, (CD) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives executive officers of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests party and involving an executive officer of the CompanyCompany or any of the Subsidiaries, except, in each case, as required by applicable Law from time to time in effect or by the terms of any Company Benefit Plans;
(iivi) (A) create, incur, assume, guarantee, endorse subject any of the properties or otherwise become liable or responsible with respect to assets (whether directlytangible or intangible) of the Company or any of the Subsidiaries to any Lien, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the for Permitted Exceptions, ;
(xvii) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except other than in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of the Subsidiaries;
(except for fair consideration viii) other than in the Ordinary Course of Business) , cancel or compromise any material debt or claim of the CompanyCompany or any of the Subsidiaries;
(vix) except as provided enter into any commitment for capital expenditures of the Company or any of the Subsidiaries in Section 6.6 hereofexcess of $500,000 for all commitments in the aggregate, other than reasonable capital expenditures in connection with any emergency or force majeure events affecting the Company or any of the Subsidiaries;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries or, through negotiations or otherwise, make any commitment or incur any liability to any labor organizations;
(xi) permit the Company or any of the Subsidiaries to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution toother entity, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).
Appears in 1 contract
Sources: Limited Liability Company Membership Interest Purchase Agreement (Oneok Inc /New/)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth on Schedule 5.1(a), (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement or (z) with the prior written consent of NewcoBuyer (which consent will not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall:
Seller will (i) conduct the Business only in the Ordinary Course of Business;
(including with respect to making capital expenditures in the Ordinary Course) and in compliance in all material respects with applicable Law, and (ii) use its commercially reasonable efforts to preserve the present (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceBusiness, and (B) insurance upon all relationships with customers and suppliers of the assets and properties Business. For the avoidance of doubt, any change in or loss of a relationship or decline in transaction activity with a customer or supplier of the Company in such amounts and of such kinds comparable to that in effect on Business arising primarily from the date announcement or pendency of this Agreement;
Agreement or the transactions contemplated hereby shall not be deemed a breach by Seller of its obligations pursuant to this Section 5.1(a), and Seller shall have no obligation pursuant to this Section 5.1(a) or otherwise to (ivi) incur any Liabilities (A) maintain the books, accounts and records of the Company in outside the Ordinary Course of BusinessCourse) or (ii) provide any financial accommodation to maintain any such relationship, (B) continue unless Seller fails to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companythis Agreement.
(b) Without limiting Prior to the generality of the foregoingClosing, except (w) as set forth on Schedule 5.1(b), (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement or (z) with the prior written consent of NewcoBuyer (which consent will not be unreasonably withheld, the Company shall delayed or conditioned), Seller will not:
(i) other than in the Ordinary Course or as required by any Business Benefit Plan or Title IV Plan, (A) increase the salary or other annual level of compensation of any director or Business Employee (other than in connection with the Individual Retention Bonus Amounts) in excess of the Company except for normal year3.0% in any 365-end increases in the Ordinary Course of Businessday period, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Business Employee or director(other than in connection with the Individual Retention Bonus Amounts), (C) adopt, or materially increase the coverage or benefits available under under, any (Business Benefit Plan, except for any such adoption or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus increase generally applicable to other similarly situated employees of Seller in its wood products business unit or other incentive compensation, insurance, pension larger business unit of Seller or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make with any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyBusiness Employee;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, payimplement any employee layoffs that could reasonably be expected to trigger the notice requirements of the WARN Act, prepay, accelerate, discharge, purchase, repurchase without taking into account any such layoffs occurring on or satisfy any Indebtedness issued or guaranteed by after the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonClosing Date;
(iii) subject any of the Purchased Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased AssetsLiens;
(iv) acquire any material properties or assets or leasehold rights in material properties or assets that would be Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Asset, except, in each case, (except for fair consideration x) pursuant to and in accordance with an existing Material Contract, (y) Inventory in the Ordinary Course of Businessor (z) of in such amounts not exceeding $200,000 in the Companyaggregate;
(v) except as provided enter into any commitment for capital expenditures with respect to the Business in Section 6.6 hereofexcess of $500,000 for any individual commitment and $2,500,000 for all commitments in the aggregate;
(vi) with respect to the Business, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, in or otherwise acquire the securities of any other Person;
(vivii) with respect to the Business, enter into, or agree to enter into, or waive any material rights under any Contract of the type required to be set forth on Schedule 3.11(a) pursuant to Section 3.11(a)(ii) through (xii), if such Contract had been in effect on the date hereof, including by modification or amendment of an existing Contract, other than, in each case, entering into, agreeing to enter into, waiving any rights, modifying or amending a private label, customer or supplier Contract in the Ordinary Course (which shall not include Contracts of the type required to be set forth on Schedule 3.11(a)(vi) or (vii) or, in the case of a private label Contract, with a term in excess of one year) or a modification or amendment of a Contract in the Ordinary Course;
(viii) with respect to the Business, enter into or amend any Contract with any distributor, including to enter into any new distribution network or expand or extend any distribution network of any distributor, except for such Contracts with a term of no more than one year or that are terminable by Seller without penalty on notice of 90 days or less, none of which shall limit the Seller to exclusive territories or similarly place restrictions on Seller’s ability to freely operate the Business;
(ix) cancel or compromise any debt material Indebtedness or claim, claim or waive or release any material right of the Company except Business, except, in the Ordinary Course of Business;
(vii) enter intoeach case, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications trade disputes with customers or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businesssuppliers;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims forProceeding, or in each case related to the Business, in a manner that would result in a loss restrictions on the conduct of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater Business (other than $50,000;the payment of monetary damages by Seller); or
(xiiixi) change agree, so as to legally bind Seller, the Purchased Assets or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail the Business to pay or delay payment of payables or other liabilities;do anything prohibited by this Section 5.1(b).
(xivc) Notwithstanding anything herein to the contrary, Seller shall be permitted (i) to take any and all action which would adversely affect the ability to transfer, assign, deliver or convey any of the parties Excluded Assets prior to consummate the transactions Closing (provided that all Liabilities related thereto shall be Excluded Liabilities for purposes of this Agreement), (ii) to take any and all actions expressly contemplated by this Agreement;
, (xviii) amend to sell any * the operating agreement applicable date of sale or any * the Company;
applicable date of sale, and (xviiv) agree in the event the Business suffers a significant loss of customers (including distributors), to materially increase Liabilities from the amounts curtail operations and to make shift changes, in each case consistent with Seller’s or its Affiliates’ prior practice in other businesses; provided, that nothing in this clause (iv) shall permit Seller to take any action with respect to an employee set forth on the Balance Sheet except Schedule 5.6(a) or to sell any Purchased Asset, in the Ordinary Course of Business under loan or credit agreements or arrangements up each case to the maximum amounts and other terms as in effect on the date of extent such action or sale is not otherwise permitted under this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise ------------------------------------------- expressly provided contemplated by this Agreement or with the prior written consent of NewcoURI, between from the date hereof until the Closing the Sellers shall, and the Closing, Stockholders shall cause the Company shallStock Companies to:
(i) conduct the Business their respective businesses only in the Ordinary Course of Business;
ordinary course consistent with past practice; (ii) use its commercially reasonable their best efforts to (A) preserve the their respective present business operations, organization (including officers management and Employeessales force) and goodwill of the Company and (B) preserve the their respective present relationships with Persons having business dealings with the Company (including customers and suppliers);
them; (iii) maintain (A) all of the their respective assets and properties ofin good working condition, or used by, the Company consistent with past practiceordinary wear and tear excepted, and (B) insurance upon all of the their respective properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
; (iv) (A) maintain the their respective books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the Company;
applicable to their respective operations; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws (including Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company).
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent (or in the case of Newcomatters described in clauses (v) and (ix) below, prior express oral consent confirmed in writing within 24 hours) of URI, from the Company date hereof until the Closing the Sellers shall not, and the Stockholders shall cause the Stock Companies not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Acquired Companies or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in the Acquired Companies;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Acquired Companies, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock, other securities or other equity interests of the Acquired Companies;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Acquired Companies;
(iv) amend the certificate of incorporation or by-laws of any of the Acquired Companies;
(A) increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessAcquired Companies, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (any, or create adopt any new) , severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Acquired Companies, or otherwise modify or amend or terminate any such plan or arrangement arrangement, or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Acquired Companies is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(iivi) (A) create, incur, assume, guarantee, endorse except for trade payables or otherwise in the ordinary course of business consistent with past custom and practice, borrow monies or draw down on any line of credit or credit facility, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease transfer or otherwise dispose of any material assets or properties (other than sales of the Purchased Assets (except inventory for fair consideration in the Ordinary Course ordinary course of Business) business consistent with past practice), or subject to any Lien any of the Companyassets (including the Assets) or properties (whether tangible or intangible) of, the Acquired Companies;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(viviii) cancel or compromise any debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course of BusinessAcquired Companies;
(viiix) enter into any commitment for capital expenditures in excess of $25,000 individually or in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization;
(viiixi) introduce any material change with respect to the operation of the Businesstheir respective businesses, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, or make any change in product specifications or prices or terms of distributions of such products;
(ixxii) enter into any transaction or enter into, amend or modify any Material Contract or renew any other Contract or transaction which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line ordinary course of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000consistent with past practice;
(xiii) change enter into or modify its creditagree to enter into any merger or consolidation with any other Person, collection or payment policiesengage in any new business, procedures or practicesinvest in, including acceleration of collections make a loan, advance or receivables (whether capital contribution to, or not past due) or fail to pay or delay payment of payables or otherwise acquire the securities of, any other liabilities;Person; and
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of the conditions to time through and including the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyDate.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser (which consent shall not unreasonably be withheld), the Selling Stockholder shall cause the Company shallto:
(i) conduct the Business business of the Company only in the Ordinary Course of Business;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the their present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;; and
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoPurchaser, the Selling Stockholder shall cause the Company shall notand its Subsidiaries not to:
(i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation of any director or Employee distribution in respect of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives capital stock of the Company or repurchase, redeem or otherwise modify or amend or terminate acquire any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers outstanding shares of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash capital stock or other property with respect to the units securities of, or other equity ownership interests of in, the Company;
(ii) (A) createtransfer, incurissue, assumesell or dispose of any shares of capital stock or other securities of the Company or grant options, guaranteewarrants, endorse calls or other rights to purchase or otherwise become liable acquire shares of the capital stock or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course other securities of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to effect any Lien recapitalization, reclassification, stock split or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any like change in the capitalization of the Purchased AssetsCompany;
(iv) acquire any material properties amend the certificate of incorporation or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) by-laws of the Company;
(v) except as provided in Section 6.6 hereof, enter into incur or agree to enter into assume any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personindebtedness;
(vi) cancel or compromise subject to any debt or claim, or waive or release Lien any material right of the Company except in properties or assets (whether tangible or intangible) of the Ordinary Course of BusinessCompany;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, Company; or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixviii) permit the Company to enter into any transaction or to make or enter into, modify or renew into any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided in this Agreement, as set forth on Schedule 6.2, as required by applicable Law or any Contract in effect on the date of this Agreement or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld, conditioned or delayed), between the date hereof and the ClosingClosing (or the earlier termination of this Agreement), the Company shall:
(i) conduct the Business business of the Company only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to to, in all material respects, (A) preserve the present business operations, organization (including officers and Employeesemployees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);; and
(iii) maintain use commercially reasonable efforts to maintain, in all material respects, (A) all of the assets and properties of, or used by, the Company consistent with past practicein their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) in the Ordinary Course of Business, continue to collect accounts receivable and pay accounts payable utilizing normal procedures and other Liabilities set forth on the Balance Sheet without, except in the Ordinary Course of Business utilizing normal procedures and without Business, discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) in the Ordinary Course of Business, comply with all contractual and other obligations of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps Laws except as would not be material to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement, as required by applicable Law, as set forth on Schedule 6.2, as required by applicable Law or any Contract in effect on the date of this Agreement or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in the Company (except for the acquisition of shares of capital stock of the Company (A) in full or partial payment of the exercise price and any applicable Taxes pursuant to the exercise, vesting or settlement of Options or restricted shares of the Company’s capital stock, (B) pursuant to the forfeiture of Options or restricted shares of the Company’s capital stock or (C) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares of the Company’s capital stock in connection with any termination of services to the Company);
(ii) transfer, issue, sell, pledge, encumber, exercise or dispose of any shares of capital stock or other securities of, or other ownership interests in, the Company, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, the Company;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company, or amend the terms of any outstanding securities of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(v) (A) increase the salary or other compensation of any director director, officer or Employee employee of the Company Company, except for normal year-end increases in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director, officer, employee or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors person who is a director or officers officer of the Company as of the date hereof (or amend any such agreement) agreement to which the Company is a party); provided that nothing in this Section 6.2(b)(v) shall limit or (E) pay restrict any award or make any dividend payment of bonuses, severance or distribution of cash or other property with respect to separation payments so long as such payments do not exceed $300,000 in the units or other equity interests of the Companyaggregate;
(iivi) (Ai) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except in excess of $100,000 in the aggregate (uother than (A) in connection with the Indebtedness related to financing of trade receivables in the Permitted ExceptionsOrdinary Course of Business, (xB) letters of credit or similar arrangements issued to or for the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred benefit of suppliers and manufacturers in the Ordinary Course of Business since and (C) pursuant to existing credit facilities in the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Ordinary Course of Business); (Bii) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by of the Company; or (Ciii) materially modify in a manner adverse to the Company in any material respect the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonIndebtedness;
(iiivii) subject to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsmaterial properties or assets (whether tangible or intangible) owned or used by the Company;
(ivviii) other than in the Ordinary Course of Business, (A) acquire any material properties or assets or (B) sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of material properties or assets of, or used by, the Company;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in incorporate or acquire any new business or Subsidiary, invest in, make a loan, advance or capital contribution toto (other than advances to employees of the Company in the Ordinary Course of Business), or otherwise acquire the securities securities, of any other Person;
(vix) except in the Ordinary Course of Business, (A) cancel any debt, (B) settle any claim or compromise any debt or claim, or (C) waive or release any material right of the Company except in the Ordinary Course of BusinessCompany;
(viixi) enter into any commitment for capital expenditures (excluding, for the avoidance of doubt, capitalized compensation costs) of the Company in excess of $100,000 for any individual commitment and $300,000 for all commitments in the aggregate;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeethe Company;
(viiixiii) introduce any material materially change with respect to the operation nature or scope of the Business, including any Company’s business;
(xiv) make a material change in the typesits Tax reporting principles, nature, composition methods or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productspolicies;
(ixxv) make, change or revoke any Tax election, settle or compromise any Tax Claim or liability or enter into a settlement or compromise, or change (or make a request to any transaction or enter into, modify or renew taxing authority to change) any Contract which by reason material aspect of its size method of accounting for Tax purposes, or otherwise is not (ii) prepare or file any Tax Return (or any amendment thereof) except in the Ordinary Course of Businessaccordance with Section 8.6(a)(i);
(xxvi) enter into any Contract, understanding or commitment that materially restrains, restricts, limits or impedes the ability right of the Business, or the ability of Newco or Purchaser, Company to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixvii) terminate, terminate or materially amend, restateother than in the Ordinary Course of Business, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or license agreement pursuant to which Intellectual Property License, other than in material to the Ordinary Course of Business Company is licensed to the Company or (B) Company Permit;
(xiixviii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss manner that requires the Company to pay in excess of revenue of, an amount that could, individually $50,000 in consideration of such settlement or in the aggregate, reasonably be expected to be greater than $50,000compromise;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xivxix) take any action which that could or would adversely affect cause the ability Company to undergo a “Deemed Liquidation Event” (as defined in the Company’s certificate of the parties to consummate the transactions contemplated by this Agreementincorporation);
(xvxx) amend the operating agreement fail to pay any required maintenance or other similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any applications for registration of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementIntellectual Property; or
(xviixxi) agree to do anything (A) prohibited by the foregoing provisions of this Section 6.2.
(c) Each Seller, solely as to such Seller, covenants and agrees that such Seller shall not:
(Bi) set a time or event upon which any outstanding Preferred Stock will automatically convert to Common Stock, or elect that Preferred Stock shall be convertible to Non-Voting Common Stock;
(ii) provide notice or otherwise elect that any Preferred Stock is convertible to Non-Voting Common Stock;
(iii) take any action that could or would make any of the representations and warranties of cause the Company to undergo a “Deemed Liquidation Event” (as defined in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company’s certificate of incorporation); or
(iv) provide notice to or otherwise convert any Common Stock into Non-Voting Common Stock.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoPurchaser or except as described on Schedule 6.3 attached hereto, between from the date hereof and until the ClosingClosing Date, the Company shall:
Sellers shall (i) conduct the Business only in the Ordinary Course of Business (including with respect to the payment of accounts payable of Sellers), (ii) use commercially reasonable efforts to preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its suppliers, customers, distributors and any others with whom or with which it has business relations, (iii) use commercially reasonable efforts to maintain appropriate levels of Inventory (consistent with past practice) and (iv) not voluntarily take any action inconsistent with this Agreement or with the consummation of the Closing. Without limiting the generality of the foregoing except as otherwise expressly contemplated by this Agreement or with the prior written consent of Purchaser or except as described on Schedule 6.3 attached hereto, from the date hereof until the Closing Date, each Seller shall:
(a) not sell, assign, transfer, convey, pledge, mortgage, lease, license or otherwise dispose of or encumber any of the Acquired Assets, or any interests therein, other than in the Ordinary Course of Business and consistent with past practice;
(b) not make any material change in its methods of management, marketing, accounting or operating (or practices relating to payments);
(c) report periodically to Purchaser, as Purchaser may reasonably request, concerning the status of the Business, the Acquired Assets and its operations and finances;
(d) not voluntarily take any action which is inconsistent with its obligations under this Agreement;
(e) use commercially reasonable efforts to maintain the Acquired Assets that are currently used in operations in good operating condition and repair, subject to ordinary wear and tear;
(f) continue all existing policies of insurance (or comparable insurance) of or for the benefit of Sellers and/or the Business in full force and effect and at least at such levels as are in effect on the date hereof, up to and including the Closing (and not cancel any such insurance or take, or fail to take, any action that would enable the insurers under such policies to avoid Liability for claims arising out of occurrences prior to the Closing);
(g) without the Bankruptcy Court approval and Purchaser’s approval (which will not be withheld or delayed unreasonably), not enter into any transaction or make or enter into any contract or commitment or amend or terminate any material agreement or commitment which is not in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice;
(h) without the Bankruptcy Court approval and Purchaser’s approval, and not terminate or reject (B) insurance upon all whether pursuant to section 365 of the assets Bankruptcy Code or otherwise) any Contract;
(i) not grant any increase in the compensation payable or to become payable to any employee of Sellers and/or the Business (including, without limitation, retention or stay bonus arrangements), except such increases as are required by contract and properties not contribute or make any commitment to, or representation that it shall, contribute any amounts to any Employee Benefit Plan of Sellers, or otherwise alter any such Employee Benefit Plan of Sellers or the Company in funding thereof except as required by law or by the terms of any such amounts and of such kinds comparable to that plan as in effect on the date of this Agreement;
(iv) (Aj) maintain the books, accounts Books and records of the Company Records in the Ordinary Course usual, regular and ordinary manner and consistent with past practice;
(k) use best efforts to maintain compliance, in all material respects, with all laws, rules and Regulations of Businessall Governmental Authorities that relate to Sellers, the Business or the Acquired Assets;
(Bl) continue to collect accounts receivable and pay accounts payable and not implement any employee layoffs that could implicate the WARN Act other Liabilities than the contemplated terminations upon Closing set forth on Schedule 6.3(l);
(m) apply or continue prosecution of applications already submitted for any Environmental Permits for the Balance Sheet continued operation of the Business (as it is currently being operated) up to and after Closing;
(n) not incur any Liability, whether absolute, fixed or contingent, except in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash consistent with past practice, bankruptcy costs and any available line of creditexpenses, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps expenses relating to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xvo) amend the operating agreement not sell, transfer, license or otherwise dispose of, or agree to sell, transfer, license or otherwise dispose of, or permit to lapse any of the CompanyIntellectual Property;
(xvip) agree to materially increase Liabilities from not terminate, discontinue, close or dispose of any plant, Leased Facility or business operation of Sellers and/or the amounts set forth on the Balance Sheet except Business;
(q) not amend or modify their articles of incorporation, bylaws or constitutive documents;
(r) not change its cash management practices in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementany material respect; or
(xviis) not (i) voluntarily take or agree or commit to do anything (A) prohibited by this Section 6.2, (B) take any action that would make any representation and warranty of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect Sellers hereunder inaccurate in any material respect at, or could result as of any time prior to, the Closing Date or (ii) voluntarily omit or agree to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with material respect to the Companyat any such time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchasers, the Seller shall use their best efforts, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchasers, the Company Seller shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other Shares of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other Shares of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other Shares of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities Shares of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Transaction Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eclips Energy Technologies, Inc.)
Conduct of the Business Pending the Closing. (a) Except (i) as otherwise expressly provided contemplated by this Agreement Agreement, (ii) as set forth on Schedule 6.2(a), (iii) as Purchaser may consent in writing (which consent shall not be unreasonably withheld, conditioned or with delayed) and (iv) to the prior written consent extent prohibited by applicable Law or the regulations or requirements of Newcoany stock exchange or regulatory organization applicable to the Company, between the date hereof and the ClosingPurchased Companies or their Subsidiaries, the Company shall, and shall cause the Purchased Companies and their Subsidiaries to:
(i) conduct the Business respective businesses of the Company, the Purchased Companies and their Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Company, the Purchased Companies and their Subsidiaries and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Company, the Purchased Companies and suppliers)their Subsidiaries;
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon maintain all of the assets and properties of the Company Company, the Purchased Companies and their Subsidiaries in their current condition, ordinary wear and tear excepted and (B) maintain (to the extent available) insurance upon all of the properties and assets of the Company, the Purchased Companies and their Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Company, the Purchased Companies and their Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting discounting, deferring or accelerating payment of such accounts or Liabilities utilizing all available cash except for such actions taken in the Ordinary Course of Business that individually, and any available line of creditin the aggregate, are not material, and (C) use its commercially reasonable efforts to comply with all contractual and other obligations applicable to the operation of the Company;, the Purchased Companies and their Subsidiaries; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided permitted by this Agreement or with as provided on Schedule 6.2(b), and except to the extent required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, the Purchased Companies or their Subsidiaries, the Company shall not, and shall cause the Purchased Companies and their Subsidiaries not to (without the prior written consent of Newcothe Purchaser, the Company which consent shall not:not be unreasonably withheld, conditioned or delayed):
(i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation distribution in respect of the capital stock of the Company, any of the Purchased Companies or any Subsidiaries, other than dividends or distributions by a wholly-owned subsidiary of a Purchased Company to such Purchased Company (or other than in connection with compliance with Section 6.16), or (B) other than pursuant to existing written Contracts listed on Schedule 6.2(b)(i), repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company, the Purchased Companies and their Subsidiaries;
(ii) transfer, issue, sell or dispose of any director shares of capital stock or Employee other securities of the Company, the Purchased Companies or any of their Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company, the Purchased Companies or any of their Subsidiaries, except that the Company except for normal year-end increases may (A) grant stock options under the Company Stock Plans in the Ordinary Course of Business; (B) issue shares of Company Common Stock pursuant to the ESPP and upon the exercise of options outstanding on the date hereof (or that are granted or issued after the date of this Agreement in compliance with this Agreement) under the Company Stock Plans; and (C) issue shares of Company Common Stock upon the exercise of Warrants or conversion of Convertible Securities;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company, the Purchased Companies or any of their Subsidiaries;
(iv) amend the certificate of incorporation, articles of association, bylaws or other organizational documents of the Company, the Purchased Companies or any of their Subsidiaries;
(v) (A) increase the annual level of compensation (including equity compensation, whether payable in cash, stock or other property) of any employee, director or consultant of the Company, the Purchased Companies or any of their Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Company, the Purchased Companies or any of their Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employmentemployment (other than to the extent providing for “at-will” employment and without severance), deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Company, the Purchased Companies or any of their Subsidiaries is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company, the Purchased Companies or any of their Subsidiaries in his or her capacity as a director, officer or employee of the Company, the Purchased Companies or any of their Subsidiaries; provided, however, that notwithstanding the foregoing, the Company may amend the Company Stock Plans to accelerate the vesting of options issued under the Company Stock Plans in connection with the Transaction;
(iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness for trade payables incurred in the Ordinary Course of Business since and amounts outstanding under existing credit facilities as of the Balance Sheet Datedate of this Agreement, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (zcontingent or otherwise) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; provided that the Purchased Companies and their Subsidiaries may borrow or draw down under existing credit facilities so long as the aggregate principal amount outstanding thereunder as of the Effective Time does not exceed the amount outstanding thereunder as of the date of this Agreement;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedExceptions and leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company, the Purchased AssetsCompanies or any of their Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company, the Purchased Assets (Companies and their Subsidiaries except for fair consideration sales of products to customers in the Ordinary Course of Business; provided, however, that the Company may sell, transfer or convey its shares of capital stock of Metron Technology (Hong Kong) Limited, Metron Technology (Far East) Limited or Metron Technology (Nordic) AB to one or more Purchased Companies or Subsidiaries selected in consultation with the Purchaser (it being understood that, effective upon such sale, assignment, transfer or conveyance, the entity whose shares have been sold, assigned, transferred or conveyed shall be deemed, for purposes of the this Agreement, to be a “Subsidiary” and not a “Purchased Company;”).
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Company, the Purchased Companies or any of their Subsidiaries except pursuant to existing Contracts listed in the Ordinary Course of BusinessSchedule 6.2(b)(ix);
(viix) enter into any commitment for capital expenditures of the Company, the Purchased Companies and their Subsidiaries in excess of $25,000 for any individual commitment and $250,000 per quarter for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company, the Purchased Companies or any of their Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company, the Purchased Companies or any Employeeof their Subsidiaries;
(viiixii) introduce any material change with respect to the operation of the BusinessCompany, the Purchased Companies or any of their Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, take any action to cause any material change in any contribution of its product or service lines to its revenues or net income, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiii) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into any transaction or to make or enter into, modify or renew into any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxiv) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xv) enter into any ContractContract or transaction between the Company on one hand and any Purchased Company or their Subsidiaries on the other hand;
(xvi) (A) make or rescind any election relating to Taxes, understanding settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes or (B) except as required by applicable law or GAAP, make any change to any of its Tax or reporting or accounting practices, methods or policies;
(xvii) enter into any contract or agreement or commitment that which restrains, restricts, limits or impedes the ability of the BusinessCompany, the Purchased Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea;
(xixviii) terminatechange its fiscal year, amendrevalue any of its assets or except as required under GAAP or applicable Law, restatemake any changes in financial accounting methods, supplement principles or waive practices except as required by GAAP or by a Governmental Body and as concurred to by the Company’s independent public accountants;
(xix) commence or settle any rights under Legal Proceeding;
(xx) enter into any (A) Contract that if in effect as of the date hereof would be a Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability Contracts of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts type set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSchedule 6.2(b)(xx); or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could reasonably be expected to result in any of the conditions to the Closing condition set forth in Section 7.2(a) not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companysatisfied.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Applied Materials Inc /De)
Conduct of the Business Pending the Closing. Except (aA) Except as set forth on Section 6.2 of the Disclosure Schedule, (B) as required by applicable Law, (C) as otherwise expressly provided contemplated by this Agreement Agreement, or (D) with the prior written consent of Newcothe Purchaser (which consent may be withheld, between delayed or conditioned):
(a) the Company shall, from the date hereof and prior to the Closing, the Company shallClosing Date:
(i) conduct the Business only its respective businesses in the Ordinary Course of BusinessBusiness including the maintenance of all records;
(ii) use its commercially reasonable best efforts to (A) preserve the present business operations, organization (including officers and Employees) operations and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)its business;
(iii) maintain (A) all confer with Purchaser prior to implementing operation decisions of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementa material nature;
(iv) (A) maintain report to Purchaser at such times as Purchaser may reasonably request concerning the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations status of the Company;
(v) comply maintain the assets owned or used by the Company in a state of repair and conditions that complies with the capital expenditure plan Company’s Contracts and is consistent with the requirements and normal conduct of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such planCompany;
(vi) comply in all material respects with all applicable LawsContracts of the Company;
(vii) take steps to renew continue in full force and effect all Permits in a timely manner prior to their lapseinsurance coverage of the Company; and
(viii) pay all maintenance and similar fees and take all other appropriate actions no action, or fail to take any reasonable action within its control, as necessary to prevent the abandonment, loss or impairment a result of all Intellectual Property which any of the Companychanges or events listed in Section 4.9 would be likely to occur.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not, from the date hereof prior to the Closing Date:
(i) amend any of its organizational documents;
(Aii) increase the salary declare, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock (or other compensation of any director or Employee equity interest) of the Company except for normal year-end increases in the Ordinary Course Company;
(iii) repurchase, redeem or acquire any outstanding shares of Business, capital stock (B) grant any bonus, benefit or other direct equity interest) or indirect compensation other securities of, or other ownership interest in, the Company;
(iv) award or pay any bonuses to any Business Employee (as defined in Section 4.11(b)) or directorany Physician (as defined in Section 4.11(a)), other than as set forth on the Disclosure Schedule;
(C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (Dv) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition severance or similar agreement or arrangement with any directors or officers of the Company (or amend nor amended any such agreement) or agree to which increase the Company is a party; compensation payable or (E) pay or make to become payable by it to any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company’s directors, officers, employees, agents or representatives or agree to increase the coverage or benefits available under the Company Benefit Plan (as defined in Section 4.12(a));
(iivi) change its accounting or Tax reporting principles, methods or policies;
(Avii) createmake or rescind any election relating to Taxes, incur, assume, guarantee, endorse settled or otherwise become liable or responsible with respect compromised any claim relating to Taxes;
(whether directly, contingently or otherwiseviii) any Indebtedness fail to promptly pay and discharge current Liabilities except where disputed in good faith by appropriate proceedings;
(u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (Dix) make any loans, advances of or capital contributions to, or investments in, any other Person;
(iii) subject Person or paid any fees or expenses to any Lien director, officer, partner, stockholder or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of BusinessAffiliate;
(x) enter into mortgage, pledge or subject to any ContractLien any of its assets, understanding properties or commitment that restrains, restricts, limits or impedes the ability of rights relating to the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement enter into or waive amend any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle make or compromise commit to make any pending or threatened Legal Proceeding or any claim or claims for, or that would result capital expenditures in a loss excess of revenue of, an amount that could, $10,000 individually or $25,000 in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change issue, create, incur, assume or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesguarantee any Indebtedness;
(xiv) take suffer any action which would adversely affect material change in the ability productivity or compensation of the parties to consummate the transactions contemplated by this AgreementPhysicians;
(xv) amend the operating agreement of the Company;institute or settle any Legal Proceeding without Purchaser’s written consent; or
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan agree, commit, arrange or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree enter into any agreement to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Apollo Medical Holdings, Inc.)
Conduct of the Business Pending the Closing. (a) Except From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, except (i) as set forth on Section 7.2(a) of the Seller Disclosure Schedule, (ii) as required by applicable Law (in which case, Seller will promptly notify Purchaser of any such condition), (iii) as otherwise expressly provided by this Agreement Agreement, or (iv) with the prior written consent of NewcoPurchaser (which may not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), the Company shallSeller will cause each Entity to:
(iA) conduct the Business only its business in the Ordinary Course of Business;Business (as conducted since January 1, 2014); and
(iiB) use its commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers and Employees) and goodwill and maintain existing relations with Governmental Authorities, customers, suppliers and other persons with whom they have material commercial relationships and keep available the services of the Company their present Employees and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);agents, in each case, in all material respects.
(iiib) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, except (i) as set forth on Section 7.2(b) of the Seller Disclosure Schedule, (ii) as required by applicable Law (in which case, Seller will promptly notify Purchaser of any such condition), (iii) as otherwise expressly provided by this Agreement, or (iv) with the prior written consent of Purchaser (which may not be unreasonably withheld, conditioned or delayed with respect to the matters in clauses (F), (I), (Q), (R) or, to the extent related thereto, (U) of this Section 7.2(b)), Seller will not permit any of the Entities (which will include for purposes of clause (S) of this Section 7.2(b) Company Parent) to:
(A) declare, set aside, make or pay any dividend or other distribution payable in cash, stock or property (or any combination thereof) in respect of its shares or other securities (including repayment of future capital contribution rights (aportaciones para futuros aumentos de capital)) or repurchase, redeem or otherwise acquire any outstanding shares or other securities of, or other ownership interests in, any Entity;
(ivB) (A1) maintain the bookssplit, accounts and records of the Company in the Ordinary Course of Businesscombine, subdivide or reclassify its shares or other securities, (B2) continue transfer, issue, sell, pledge, grant, encumber or dispose of any shares or other securities of any Entity or grant options, warrants, calls or other rights to collect accounts receivable and pay accounts payable and purchase or otherwise acquire shares or other Liabilities set forth securities of any Entity, or (3) enter into any agreement with respect to the voting of its shares or other securities;
(C) effect any recapitalization, reclassification or like change in its capitalization or voluntarily adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Entity;
(D) amend its certificate of incorporation or by-laws or other organizational documents;
(E) enter into a Contract imposing non-competition, “most-favored nation” status, exclusivity or similar restrictions on the Balance Sheet Business or requiring any Entity to effect material changes on the Business or, other than in the Ordinary Course of Business utilizing normal procedures and without discounting (as conducted since January 1, 2014), or accelerating payment enter into, terminate or modify (1) any Contract with Seller or any of such accounts its Affiliates or Liabilities utilizing all available cash and (2) any available line of credit, and (C) comply with all contractual and other obligations of Contract that would have been a Material Contract if entered into prior to the Companydate hereof;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A1) increase the compensation or benefits of any directors or Employees, other than promotions, changes in positions, annual increases in salary or other compensation of any director or Employee of wages for non-officer Employees by no more than two percent in the Company except for normal year-end increases aggregate in the Ordinary Course of BusinessBusiness (as conducted since January 1, 2014), (B2) grant or pay any bonus, severance or new benefit or other direct or indirect compensation to any Employee of its directors or directorEmployees, provided that the Company and its Subsidiaries may pay annual cash bonuses with respect to the year 2014 or 2015 in the Ordinary Course of Business (as conducted since January 1, 2014) based on actual performance, (C3) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company Employee Plan or otherwise modify or amend or terminate any Employee Plan (or communicate in writing any intention to take such plan action), except, in each case, as required by applicable Law from time to time in effect or arrangement (D) enter into by the terms of any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers Employee Plan as of the Company date hereof, (4) take any action to accelerate the vesting or amend payment, or fund or secure the payment, of any such agreementamounts under any Employee Plan, (5) transfer the employment or service location of any individual to, or hire any individual to which work at, a location in the Company is a party; United States, or (E6) pay or make incur any dividend or distribution of cash charge, expense or other property with respect to obligation under the units or other equity interests of the CompanyRelated Party Contract set forth on Schedule 7.2(b)(F);
(iiG) (A) create, incur, assume, guarantee, endorse subject any of its properties or otherwise become liable or responsible with respect to assets (whether directlytangible or intangible and including any of the Shares) to an Encumbrance, contingently or otherwise) any Indebtedness except (u) for the Indebtedness related to the incurrence of Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred Encumbrances in the Ordinary Course of Business (as conducted since January 1, 2014);
(H) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than (1) to the Balance Sheet Date, Entities or (z2) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except advances to Employees, agents, consultants, accountants, service providers or representatives of any Entity in the Ordinary Course of BusinessBusiness (as conducted since January 1, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy 2014) and not in excess of MXN$75,000 for each advance and MXN$100,000 in the aggregate to any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other single such Person;
(iiiI) subject incur any Indebtedness for borrowed money other than (1) Indebtedness in an aggregate amount less than MXN$150,000,000, (2) Indebtedness associated with the conversion into debt of above 90 days past due supplier account payables, or (3) Indebtedness that is refinancing existing Indebtedness with Indebtedness maturing between the date of this Agreement and the Closing Date, in the case of clauses (1) and (3), only to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any the extent of Indebtedness (x) repayable at the option of the Purchased Assetsborrower without penalty or premium, (y) on terms reasonably acceptable to Purchaser and (z) in respect of which Seller has provided Purchaser with prior notice specifying the intended use of proceeds;
(ivJ) make or authorize any accrual or commitment for capital expenditures (excluding accruals or commitments that are fully used or spent before the Closing Date), in each case, in excess of 120% of the budgeted quarterly amounts under the 2015 Budget;
(1) purchase, lease or otherwise acquire any material properties properties, rights, spectrum or assets other assets, in each case, other than in the Ordinary Course of Business (as conducted since January 1, 2014), or (2) sell, assign, license, transfer, conveylease, lease mortgage, pledge, surrender, encumber, divest, cancel, abandon or fail to exercise any available rights to avoid the lapse or expiration of, or otherwise dispose of any of its material operations, properties, rights (including any rights in respect of transmission towers owned or leased by the Purchased Assets Entities), product lines, spectrum, businesses, Intellectual Property, Company Telecommunication Licenses or assets (except for fair consideration sales of inventory to customers in the Ordinary Course of BusinessBusiness (as conducted since January 1, 2014) or sales of the Companyobsolete or worthless assets or inventory);
(vL) except other than in the Ordinary Course of Business (as provided in Section 6.6 hereofconducted since January 1, 2014), cancel or compromise any material debt or claim or waive or release any material right of any Entity;
(M) enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity;
(N) other than short-term financial investments made in the Ordinary Course of Business (as conducted since January 1, and not engage in any new business or invest in2014), make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(viO) cancel change the accounting methods, practices or compromise any debt procedures applicable to the Entities, except as required by Mexican NIF or claim, or waive or release any material right of the Company except in the Ordinary Course of Businessapplicable Law;
(viiP) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix1) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit other than the employment current lines of business of the Entities and products and services reasonably ancillary thereto, (2) except as currently conducted, engage in the conduct of any personsbusiness in any state that would require the receipt of a new or transfer of an existing Company Telecommunication License (other than renewals or replacements of any existing Company Telecommunication License), or (3) conduct any business operations outside of Mexico (excluding pursuant to customary roaming arrangements);
(xiQ) terminateassign, amendtransfer, restatesell, supplement lease, voluntarily forfeit, cancel, surrender, abandon or waive fail to undertake reasonable best efforts to defend any Permit or Telecommunications License;
(R) settle any action before or threatened to be brought before a Governmental Authority for an amount in excess of MXN$15,000,000 individually and MXN$75,000,000 in the aggregate;
(S) make or change any material Tax election, change any method of Tax accounting, settle or otherwise finally resolve any dispute with respect to a material amount of Tax or file a claim for any refund of Tax outside the Ordinary Course of Business for claiming such refunds;
(T) use infrastructure network technologies or billing systems other than their existing network technologies and billing systems or other network technologies and billing systems disclosed to Purchaser prior to the date hereof; or (U) commit or agree to do anything prohibited by this Section 7.2.
(c) From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, except as expressly contemplated by this Agreement, Seller Parent and Seller will (i) not transfer, sell, pledge, grant, encumber or dispose of, and cause Company Parent and the Uruguay Subsidiary not to issue, any Company Parent Interests or other equity interests in Company Parent or the Uruguay Subsidiary or grant options, warrants, calls or other rights under to purchase or otherwise acquire any such Company Parent Interests or other equity interests or enter into any agreement with respect thereto and (ii) cause Company Parent and the Uruguay Subsidiary not to (A) Material Contractsplit, Real Property Leasecombine or subdivide its Company Parent Interests or other equity interests, Personal Property Lease (B) effect any recapitalization, reclassification or Intellectual Property Licenselike change in its capitalization or voluntarily adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other than reorganization, (C) amend its organizational documents or operating agreement, (D) engage in any business or operations other than, in the case of Company Parent, holding the Company Shares, or (E) acquire any assets, hire employees or incur any Liabilities. Seller will cause Company Parent to transfer all equity interests in the Uruguay Subsidiary to Seller (the “Uruguay Divestiture”) prior to Closing.
(d) From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, (i) Seller and Seller Parent will contribute cash to the Entities in amounts sufficient for the Entities to conduct their business in the Ordinary Course of Business or and in accordance with this Agreement and (Bii) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims forno later than the tenth Business Day after the end of each 2015 Budget Month and each calendar quarter that ends during the 2015 Budget Period, or that would result in Seller will deliver a loss certificate signed on behalf of revenue of, Seller by an amount that could, individually or in the aggregate, reasonably be expected authorized officer of Seller to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from Purchaser setting forth the amounts set forth on of Qualifying Capital Expenditures and Qualifying Sales and Marketing Expenditures made by the Balance Sheet except in Entities and the Ordinary Course amount of Business under loan or credit agreements or arrangements up cash contributions made by Seller and Seller Parent to the maximum amounts and other terms Entities, in each case during such 2015 Budget Month or calendar quarter, as in effect on applicable, and, at the date request of this Agreement; or
(xvii) agree Purchaser, furnish or provide Purchaser access to, supporting documentation sufficient to do anything (A) prohibited by this Section 6.2, (B) that would make any support Purchaser’s review of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companysuch certificate.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company including, but not limited to all Company Intellectual Property and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws; and
(vi) Shall not enter into a material agreement including, but not limited to, any asset acquisition, purchase or disposition or any financing arrangement whether debt and/or equity.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Sellers, the Purchaser shall:
(i) conduct the businesses of the Purchaser only in the ordinary course consistent with past practice;
(ii) (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Purchaser including, but not limited to all Company Intellectual Property and (B) preserve its present relationship with Persons having business dealings with the Purchaser;
(iii) maintain (A) all of the assets and properties of the Company Purchaser in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Purchaser in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Purchaser in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the CompanyPurchaser;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viiivi) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonmentShall not enter into a material agreement including, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made but not limited to, forany asset acquisition, purchase or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding disposition or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (financing arrangement whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companydebt and/or equity.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, between Cap Corp during the date hereof and the Closing, the Company Interim Period shall:
(i) conduct the Business business of Cap Corp only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe staff) and goodwill of the Company Cap Corp and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Corporation and suppliers)Cap Corp;
(iii) maintain (A) all of the assets and properties ofof Cap Corp in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the assets and properties of the Company Assets in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) maintain
(A) maintain the books, accounts and records of the Company Cap Corp in the Ordinary Course ordinary course of Business, business consistent with past practices,
(B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and and
(C) comply with all contractual and other obligations applicable to the operation of the CompanyCap Corp;
(v) comply with promptly pay and discharge all liabilities (including liabilities for services rendered or goods delivered to Cap Corp) that are due and payable by it prior to the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making Closing Date except where such capital expenditures liabilities are being disputed in the amounts and at the times set forth in such plan;good faith by appropriate proceedings; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Corporation and the Vendors during the Interim Period shall not:
(i) repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, Cap Corp or the Corporation;
(ii) transfer, issue, sell or dispose of any shares of capital stock, partnership interests or other securities of the Corporation or Cap Corp or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock, partnership interests or other securities of the Corporation or Cap Corp;
(iii) effect any recapitalization, reclassification, share split or like change in the capitalization of the Corporation or Cap Corp (except in the case of the amalgamation of Cap Corp with other companies held directly or indirectly by Gus);
(iv) a▇▇▇d the certificate of incorporation, articles, bylaws, certificate of limited partnership or partnership agreement of the Corporation or Cap Corp;
(v) except as set forth on Schedule 7.2, (A) increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end Cap Corp whose annual compensation exceeds C$40,000, other than any such increases of less than 5% in the Ordinary Course aggregate granted in the ordinary course of Businessbusiness consistent with past practice, (B) increase the annual level of compensation payable or to become payable by Cap Corp to any of their respective executive officers, (C) grant any bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant whose annual compensation exceeds C$40,000, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Cap Corp or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Cap Corp is a party; party or (E) pay involving a director, officer or make any dividend employee of Cap Corp in his or distribution her capacity as a director, officer or employee of cash or other property with respect to the units or other equity interests of the CompanyCap Corp;
(iivi) (A) createexcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedLien, any of the Purchased Assets;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Assets, except (except other than with respect to the Stores or the Business) for fair consideration in the Ordinary Course ordinary course of Business) business consistent with past practice of the CompanyCap Corp;
(vix) cancel or compromise any debt or claim or waive or release any material right related to the Business or the Assets of Cap Corp except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice;
(x) enter into any commitment for Capital Expenditures of Cap Corp or the Corporation;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Corporation or Cap Corp or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Corporation or Cap Corp;
(xii) introduce any material change with respect to the operation of Cap Corp, including any material change in the types, nature, composition or quality of its products or services or, other than in the ordinary course of business, make any change in specifications for product or services of the Business or prices or terms of distributions of such product or services;
(xiii) enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice of Cap Corp or the Business;
(xiv) become obligated to develop any new locations;
(xv) enter into or agree to enter into any merger or consolidation with any Person, and not Person or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of of, any other Person;
(vixvi) cancel except for transfers of cash pursuant to normal cash management practices, make any investments in or compromise any debt or claimloans to, or waive pay any fees or release expenses to, or enter into or modify any material right Contract with any of the Company except in Vendors, partner or Affiliate of the Ordinary Course of BusinessVendors;
(viixvii) enter intorestructure, change, modify or terminate renegotiate the terms of any labor obligation of Cap Corp to another Person which restructuring, change, modification or collective bargaining agreement orrenegotiation has the effect of extending, through negotiation delaying or otherwise, make deferring the time for payment or performance of any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, orsuch obligation, other than in the Ordinary Course ordinary course of Business, make any change in product specifications or prices or terms of distributions of such productsbusiness consistent with past practice;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixviii) agree to do anything (A) prohibited by this Section 6.2, (B) that 7.2 or take or omit to take any action which would make any of the representations and warranties of the Company Vendors in this Agreement or any of the Company Transaction Documents untrue or incorrect in any material respect during the Interim Period; or
(xix) make any material Tax allocation or could result settle or compromise any Tax liability for an amount materially in any excess of the conditions to liability therefor that is reflected on the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to financial statements of Cap Corp for the Companyperiod ended January 31, 1997.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided ------------------------------------------- contemplated by this Agreement Agreement, as set forth in Section 5.1 of Seller Disclosure Schedule or with the prior written consent of NewcoBuyer or Parent, between during the period from the date hereof and of this Agreement to the Closing, Seller will cause the Companies to, conduct their respective businesses and operations (including but not limited to, the management of the payment and receipt of the Companies' and the Company shall:
(i) conduct Subsidiaries' accounts payable and accounts receivable, respectively), according to their ordinary and usual course of business consistent with past practice and will use all reasonable efforts consistent therewith to preserve intact the Business only Companies' properties, assets and business organizations, to keep available the services of the Companies' officers and employees and to maintain satisfactory relationships with customers, suppliers, distributors and others having commercially beneficial business relationships with the Companies, in each case in the Ordinary Course ordinary course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) . Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Closing, Seller shall use its reasonable best efforts to manage the business of the Companies so as to avoid a material adverse change in March 31 Working Capital, and to have a combined cash balance on the Closing Date at the Companies and the Company Subsidiaries of approximately $500,000. For purposes of the previous sentence, March 31 Working Capital shall mean the combined current assets (including for purposes of this definition only, cash of $500,000), less the combined current liabilities (excluding (a) any amounts due from the Companies or the Company Subsidiaries to Seller or any subsidiary of Seller, (b) any short-term indebtedness for notes payable or borrowed money and (c) any accrued income taxes for the 1998 tax year) of the Companies and the Company Subsidiaries taken as a whole as of March 31, 1998, which the parties acknowledge was approximately $13 million as of March 31, 1998 (which amount reflects adjusted cash of $500,000). Buyer acknowledges that the foregoing does not constitute a guarantee by Seller of any minimum combined working capital for the Companies and the Company Subsidiaries. Seller will not, and will not permit the Companies to, take any action with the purpose of causing any of the conditions to Buyer's obligations set forth in Article VII hereof to not be satisfied. Except as set forth in Section 5.1 of Seller Disclosure Schedule, without limiting the generality of the foregoing, and except as otherwise expressly provided by in this Agreement or with Agreement, Seller will not permit the Companies, prior to the Closing, without the prior written consent of NewcoBuyer or Parent, to:
(a) issue, sell or pledge, or authorize or propose the Company shall not:issuance, sale or pledge of (i) additional shares of capital stock of any class (including Shares), or securities convertible into or exchangeable for any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(b) declare or pay any dividend or distribution on any shares of the capital stock of the Companies;
(c) redeem, purchase or otherwise acquire any outstanding shares of the capital stock of the Companies;
(d) propose or adopt any amendment to the Certificate of Incorporation or By-Laws of the Companies;
(e) except in the ordinary course of business consistent with past practice or pursuant to the terms of StarMed's existing credit facility (the "Credit Facility"), incur any long-term indebtedness or issue any debt securities or assume, guarantee or endorse the obligations of any other Person;
(f) (i) increase in any manner the rate or terms of compensation or benefits of any of its directors, officers or other employees, except as may be allowed under existing employment agreements or such increases as are granted in the ordinary course of business consistent with past practice, or (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or permitted by any existing Plan or other agreement or arrangement to any such director, officer or employee, whether past or present, or (iii) enter into or amend any employment, bonus, severance or retirement contract or adopt any employee benefit plan;
(i) except in the ordinary course of business consistent with past practice, sell, lease, transfer or otherwise dispose of, any of its material property or assets or (Aii) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in Encumbrances securing amounts outstanding under the Ordinary Course of BusinessCredit Facility, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with Encumbrance on any of the directors, officers, Employees, agents its material property or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyassets;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (Dh) make any loans, advances of or capital contributions tocontributions, or investments in, except advances for travel and other normal business expenses to officers and employees in an aggregate amount outstanding at any other Personone time not to exceed $10,000;
(iiii) subject to any Lien enter into other material agreements, commitments or otherwise encumber orcontracts, except for Permitted Exceptionsagreements, permitcommitments or contracts made in the ordinary course of business consistent with past practice; or
(j) fail to maintain all its assets in good repair and condition, allow except to the extent of wear or suffer to be subjected to any Lien use in the ordinary course of business and consistent with past practice or otherwise encumbered, any of the Purchased Assetsdamage by fire or other unavoidable casualty;
(ivk) acquire institute, settle or dismiss any material properties action, claim, demand, lawsuit, proceeding, arbitration or assets grievance by or sellbefore any Governmental Entity threatened against, assign, license, transfer, convey, lease relating to or otherwise dispose of any of involving the Purchased Assets (except for fair consideration Companies or the Company Subsidiaries in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation connection with any Personbusiness, and not engage in any new business asset or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right property of the Company except in or the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, Company Subsidiaries other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line ordinary course of business consistent with past practices but not, in any geographic area or solicit the employment individual case, in excess of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviil) agree in writing to do anything (A) prohibited by this Section 6.2, (B) that would make take any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyforegoing actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 8.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoBuyer (which consent shall not be unreasonably withheld, between conditioned or delayed), each of the date hereof Company and the Closing, the Company shall:
(i) Blocker shall use its commercially reasonable efforts to conduct the Business only its business in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except (w) as set forth on Schedule 8.2, (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement or (z) with the prior written consent of NewcoBuyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Company and the Blocker shall not:
(i) issue or sell any shares of the Company’s or the Blocker’s capital stock or other equity securities;
(ii) issue or sell any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of the Company’s or the Blocker’s capital stock or other equity securities;
(iii) effect any recapitalization, reclassification, stock dividend, stock split or like change in the capitalization of the Company or the Blocker;
(iv) amend in any material respect the certificate of incorporation or by-laws or comparable organizational documents of the Company or the Blocker;
(v) other than in the Ordinary Course of Business or as contemplated by an existing Company Benefit Plan or Company Employee Agreement, agreement, policy or arrangement (including any collective bargaining agreement) (A) increase the salary or other annual level of compensation of any director or Employee officer of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) grant modify or amend any bonus, benefit Company Benefit Plan or other direct Company Employee Agreement in any manner that materially increases the amount of the liability attributable to the Company in respect of such Company Benefit Plan or indirect compensation to any Company Employee or directorAgreement, (C) increase the coverage grant or benefits available under pay any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, extraordinary bonus or other incentive compensation, insurance, pension or other extraordinary discretionary compensation to any employee benefit plan or arrangement made to, forof the Company, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition employment Contract (other than any Contract terminable without cost or similar agreement or arrangement penalty by the Company by notice of not more than sixty (60) days) with any directors or officers of the Company (or amend any such agreement) individual to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests serve as an officer of the Company;
(iivi) subject to any Lien any of the properties or assets (whether tangible or intangible) of the Company or the Blocker, except (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personfor Permitted Exceptions;
(iiivii) subject become legally committed to make any Lien or otherwise encumber orcapital expenditures, except for Permitted Exceptions, permit, allow capital expenditures pursuant to projects for which work has already commenced or suffer to be subjected to any Lien or is otherwise encumbered, any of contemplated in the Purchased Assetscapital expenditure budget;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities or a substantial portion of the assets of any Person;
(viix) cancel incur or compromise assume any debt indebtedness for borrowed money in excess of $200,000 or claim, or waive or release guarantee any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, orsuch indebtedness, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any indebtedness incurred (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permitunder any existing credit facilities;
(xiix) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected other than with respect to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except customers in the Ordinary Course of Business under and employees or managers as advances of business expenses in the Ordinary Course of Business, loan or credit agreements advance any funds to any Person;
(xi) other than in the Ordinary Course of Business, sell, assign, license, transfer, convey or arrangements up lease or otherwise dispose of any properties or assets of the Company having a value, in any individual case, in excess of $100,000;
(xii) make or rescind any material election relating to Taxes, settle or compromise any material Proceeding relating to Taxes, or, except as required by GAAP, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the maximum amounts and preparation of its most recent Tax Returns, other terms as in effect on than to account for the transactions contemplated by this Agreement (including making appropriate adjustments to estimated tax payments after the date hereof);
(xiii) enter into any collective bargaining agreement;
(xiv) other than in the Ordinary Course of this AgreementBusiness, amend any material term of, or terminate or otherwise modify in any material respect any Material Contract;
(xv) other than in the Ordinary Course of Business, materially delay, decrease or increase the rate of promotional or marketing expenditures;
(xvi) cancel, terminate or modify any material insurance policy naming the Company as a beneficiary or a loss payable payee without obtaining reasonably comparable substitute insurance coverage;
(xvii) other than in the Ordinary Course of Business, license or sublicense any Company Intellectual Property;
(xviii) other than in the Ordinary Course of Business, settle or compromise any litigation, except for cash payments to be made prior to Closing;
(xix) acquire, purchase, redeem or encumber any equity interest; or
(xviixx) authorize, or commit or agree to do do, anything (A) prohibited by this Section 6.28.2(b).
(c) Notwithstanding the foregoing, the parties to this Agreement acknowledge and agree that (Bi) that would make any of the representations and warranties of the Company nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the Company’s operations for purposes of the HSR Act or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions other applicable Antitrust Law prior to the Closing not being satisfied expiration or termination of any applicable waiting period under the HSR Act or any other applicable Antitrust Law waiting period, or prior to receipt of any applicable approval under any antitrust or competition law; and (Cii) that could notwithstanding anything to the contrary set forth in this Agreement, no consent of Buyer will be reasonably expected to have a Material Adverse Effect required with respect to any matter set forth in this Agreement to the Companyextent the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with During the period prior written consent of Newco, between the date hereof and to the Closing, Sellers shall use commercially reasonable efforts, except as otherwise required, authorized or restricted pursuant to the Company shall:
(i) conduct Bankruptcy Code or an Order of the Bankruptcy Court, to operate the Business only in the Ordinary Course of Business;
Business (ii) among other things, Sellers will not incur unreasonable liabilities, including, inappropriate increases in Inventory). Sellers shall use its commercially reasonable efforts to (A) preserve except as related to or the present business operations, organization (including officers and Employees) and goodwill result of the Company and filing or pendency of the Bankruptcy Cases, preserve intact their business organizations, (B) preserve maintain the present Business and the Acquired Assets (normal wear and tear excepted), (C) keep available the services of its officers and Covered Employees, (D) except as related to or the result of the filing or pendency of the Bankruptcy Cases, maintain satisfactory relationships with Persons licensors, licensees, suppliers, contractors, distributors, consultants, vendors and others having business dealings relationships with Sellers in connection with the Company operation of the Business (including customers and suppliersother than payment of pre-petition claims);
, (iiiE) maintain (A) pay all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company its undisputed post-petition obligations in the Ordinary Course of Business, and (BF) continue to collect accounts receivable operate the Business and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Acquired Assets in all material respects in compliance with all Laws applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance the Business and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Sellers consistent with past practice. Without limiting the generality of the foregoing, and except (i) as otherwise expressly provided in or contemplated by this Agreement, or (ii) required, authorized or restricted pursuant to the Bankruptcy Code or an Order of the Bankruptcy Court, on or prior to the Closing Date, Sellers may not, without the prior written consent of Buyer, take any of the following actions with respect to the Business or the Acquired Assets.
(b) Except (i) as set forth on Section 5.2(b) of the Disclosure Schedule, (ii) as required by applicable Law or by order of the Bankruptcy Court, (iii) as otherwise contemplated by this Agreement or (iv) with the prior written consent of NewcoBuyer (which consent shall not be unreasonably withheld, conditioned or delayed), no Seller shall, solely as it relates to the Company shall notBusiness:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases than in the Ordinary Course of BusinessBusiness or as required by any applicable collective bargaining agreement or Law, (A) materially increase the annual level of compensation of any Covered Employee or (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with Employee Benefit Plan;
(ii) subject any of the directorsAcquired Assets to any Lien, officersexcept for Permitted Liens and any Lien securing any debtor in possession loan facility or granted in an order authorizing use of cash collateral;
(iii) not terminate, Employeespermit to expire, agents or representatives of the Company or otherwise modify or amend or terminate fail to renew, obtain or preserve any such plan material Permit;
(iv) make any material loans or arrangement material advances;
(Dv) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition Contract that limits or similar agreement restricts the conduct or arrangement with any directors or officers operations of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests business of the Company;
(iivi) (A) incur, create, incur, assume, guarantee, endorse guarantee or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) for any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Businessindebtedness;
(vii) enter intouse “liquidation” sales or use “brand sale”, modify “going out of business”, “out of business”, “going out of business sale”, “we quit”, “quitting business”, “everything must go”, “liquidation/liquidating” or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization similar language with respect to any Employeethe Business, except as being used as of the date hereof;
(viii) introduce except as previously disclosed to or known by Buyer, materially modify, amend, supplement or terminate any material change with respect to the operation of the Business, including any material change in the types, nature, composition Contract or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsLease set forth on Schedule 2.8(a);
(ix) enter into fail to maintain in full force and effect any transaction or enter intofilings necessary to maintain the Owned Intellectual Property, modify or renew any Contract which by reason of its size or otherwise is not other than in the Ordinary Course of Business;
(x) enter into any Contractwrite up, understanding write down or commitment that restrains, restricts, limits or impedes write off the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment book value of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, assets other than in the Ordinary Course of Business or Business;
(Bxi) Permitengage any new employee other than in the Ordinary Course of Business; provided, however, that Sellers shall not engage any new employee whose annual base salary would exceed $90,000;
(xii) settle reject any Contracts or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss Leases other than as set forth on Section 5.2(b)(xii) of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000Disclosure Schedule;
(xiii) change other than through Sellers’ e-commerce platform until such time as Sellers, using commercially reasonable efforts, may be able to discontinue the issuance thereof and for issuances through third-party vendors, issue any gift cards or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesgift certificates;
(xiv) take seek to accelerate the receipt of any action which would adversely affect royalty payments or licensing receivables generated by the ability Business, by way of the parties to consummate the transactions contemplated by this Agreementdiscount or otherwise;
(xv) amend the operating agreement of the Company;terminate any Covered Employee unless such termination is for “cause”; or
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company5.2.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shalland its Subsidiaries to:
(i) conduct the Business respective businesses of the Company and its Subsidiaries only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and its Subsidiaries and (B) preserve the its present relationships relationship with Persons persons and entities having business dealings with the Company (including customers and suppliers)its Subsidiaries;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practiceand its Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company and its Subsidiaries in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Company and its Subsidiaries; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company and its Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries; 21
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of its Subsidiaries;
(iv) amend the certificate of incorporation or by-laws of the Company or any of its Subsidiaries;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course or any of Businessits Subsidiaries, (B) increase the annual level of compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or any of its Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of its Subsidiaries is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the CompanyCompany or any of its Subsidiaries in his or her capacity as a director, officer or employee of the Company or any of its Subsidiaries;
(iivi) (A) createexcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness other person or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personentity;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company or any of its Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany and its Subsidiaries except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) cancel or compromise any debt or claim or waive or release any material right of the Company or any of its Subsidiaries except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures out of the ordinary course;
(xi) permit the Company or any of its Subsidiaries to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) permit the Company or any of its Subsidiaries to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel other person or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000entity;
(xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company or any of its Subsidiaries to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement Agreement, as set forth on Schedule 6.2(a), or in connection with the transactions contemplated hereby, or with the prior written consent of NewcoBuyer, which consent will not be unreasonably withheld, conditioned or delayed, between the date hereof and the Closing, Sellers and the Company shall:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries and (B) preserve the present relationships with Persons having business dealings with the Company and the Subsidiaries (including customers clients, customers, suppliers and suppliersservice providers);
(iii) use commercially reasonable efforts to ensure that each Contract entered into after the date of this Agreement will not require the procurement of any consent (except for any consent required under an Advisory Contract), waiver or novation or provide for any material change in the obligations of any party hereto in connection with, or terminate as a result of the consummation of, the transactions contemplated hereby (unless such consent to the transactions contemplated by this Agreement is obtained upon the execution of such Contract);
(iv) use commercially reasonable efforts to maintain (A) all of the tangible assets and properties of, or used by, the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(ivv) (A) maintain the books, accounts and records of the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all material contractual and other obligations of the Company;
Company and the Subsidiaries, and (vD) comply make each insurance claim in relation to the Company and the Subsidiaries promptly and in accordance with the capital expenditure plan requirements of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)relevant policy, including making such capital expenditures except if Buyer agrees otherwise in the amounts and at the times set forth in such plan;writing; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement Agreement, as set forth on Schedule 6.2(b) or with the prior written consent of NewcoBuyer, which consent will not be unreasonably withheld, conditioned or delayed, the Company and the Subsidiaries shall not:
(i) issue any notes, bonds or other debt securities or any capital stock or other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities;
(ii) borrow any amount except advances on existing revolving lines of credit in the Ordinary Course of Business;
(iii) discharge or satisfy any material Lien, pay any material Liability or waive or release any material right of any of the Company or the Subsidiaries other than current Liabilities paid in the Ordinary Course of Business;
(iv) declare or make any payment or distribution of cash or other property to its shareholders with respect to its capital stock or other equity securities or purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity securities (including, without limitation, any warrants, options or other rights to acquire its capital stock or other equity securities);
(v) mortgage or pledge any of its properties or assets or subject them to any material Lien, except (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases Liens incurred in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation Liens incurred pursuant to any Employee or directorcredit facilities existing as of the date of this Agreement, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation Liens for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, forcurrent property Taxes not yet due and payable, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyPermitted Exceptions;
(iivi) (A) createsell, incurassign or transfer any of its material tangible assets, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire cancel any material properties debts or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Businessclaims;
(vii) enter intoacquire, modify license, disclose, sell, assign or terminate transfer any labor Intellectual Property rights, or collective bargaining agreement or, through negotiation or otherwise, make disclose any commitment or incur any Liability material Confidential Information to any labor organization with respect to any EmployeePerson without obtaining an agreement, in usual and customary form and substance, from such Person protecting the confidentiality of such Confidential Information;
(viii) introduce waive any rights of material change with respect to the operation of the Businessvalue, including any material change in the types, nature, composition whether or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(ix) make any single capital expenditure or commitment in excess of $25,000 or capital expenditures or commitments that aggregate in excess of $100,000;
(x) enter into make any Contractloans or advances, understanding or commitment that restrains, restricts, limits or impedes other than recruiting inducements made in the ability Ordinary Course of the Business, to, or guarantees for the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment benefit of any personsPersons;
(xi) terminate, amend, restate, supplement or waive make any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, investment other than in the Ordinary Course of Business or (B) Permitorganize any subsidiary;
(xii) make any payments for political contributions or make any bribes, kickback payments or other illegal payments;
(xiii) hire or appoint any Employee, officer, or Independent Contractor (other than an advisor);
(xiv) increase any officer’s or Employee’s compensation, incentive arrangements or other benefits;
(xv) amend its articles of incorporation or bylaws or comparable governing documents;
(xvi) directly or indirectly engage in any transaction, arrangement or Contract with any officer, director, manager, partner, shareholder or other insider or Affiliate which is not at arm’s length;
(xvii) transfer, issue, sell, pledge, encumber or dispose of the equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries;
(xviii) effect any recapitalization, reclassification, stock split, combination or like change in its capitalization, or amended the terms of any of its outstanding securities;
(xix) make a change in its accounting or Tax reporting principles, methods or policies;
(xx) (A) make, change or revoke any Tax election, settle or compromise any Tax Claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (B) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and the Company and the Subsidiaries provided Buyer a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for Buyer to review and approve (such approval not to be unreasonably withheld or delayed);
(xxi) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiiixxii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesLiabilities;
(xivxxiii) take amend any action which would adversely affect insurance contract or fail to notify the ability insurer in the event of the parties to consummate the transactions contemplated by this Agreementany significant loss;
(xvxxiv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet amend, modify or terminate any Plan, except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementextent an amendment was required to comply with applicable Law; or
(xviixxv) agree to do anything (A) prohibited by this Section 6.2, (B) 6.2 or take any action that would make any of the representations and warranties of the Company Company, the Subsidiaries or Seller in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except (i) as otherwise expressly provided contemplated by this Agreement Agreement, (ii) as set forth on Schedule 6.2(a), (iii) as Purchaser may consent in writing (which consent shall not be unreasonably withheld, conditioned or with delayed) and (iv) to the prior written consent extent prohibited by applicable Law or the regulations or requirements of Newcoany stock exchange or regulatory organization applicable to the Company, between the date hereof and the ClosingPurchased Companies or their Subsidiaries, the Company shall, and shall cause the Purchased Companies and their Subsidiaries to:
(i) conduct the Business respective businesses of the Company, the Purchased Companies and their Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Company, the Purchased Companies and their Subsidiaries and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Company, the Purchased Companies and suppliers)their Subsidiaries;
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon maintain all of the assets and properties of the Company Company, the Purchased Companies and their Subsidiaries in their current condition, ordinary wear and tear excepted and (B) maintain (to the extent available) insurance upon all of the properties and assets of the Company, the Purchased Companies and their Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Company, the Purchased Companies and their Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting discounting, deferring or accelerating payment of such accounts or Liabilities utilizing all available cash except for such actions taken in the Ordinary Course of Business that individually, and any available line of creditin the aggregate, are not material, and (C) use its commercially reasonable efforts to comply with all contractual and other obligations applicable to the operation of the Company;, the Purchased Companies and their Subsidiaries; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided permitted by this Agreement or with as provided on Schedule 6.2(b), and except to the extent required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, the Purchased Companies or their Subsidiaries, the Company shall not, and shall cause the Purchased Companies and their Subsidiaries not to (without the prior written consent of Newcothe Purchaser, the Company which consent shall not:not be unreasonably withheld, conditioned or delayed):
(i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation distribution in respect of the capital stock of the Company, any of the Purchased Companies or any Subsidiaries, other than dividends or distributions by a wholly-owned subsidiary of a Purchased Company to such Purchased Company (or other than in connection with compliance with Section 6.16), or (B) other than pursuant to existing written Contracts listed on Schedule 6.2(b)(i), repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company, the Purchased Companies and their Subsidiaries;
(ii) transfer, issue, sell or dispose of any director shares of capital stock or Employee other securities of the Company, the Purchased Companies or any of their Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company, the Purchased Companies or any of their Subsidiaries, except that the Company except for normal year-end increases may (A) grant stock options under the Company Stock Plans in the Ordinary Course of Business; (B) issue shares of Company Common Stock pursuant to the ESPP and upon the exercise of options outstanding on the date hereof (or that are granted or issued after the date of this Agreement in compliance with this Agreement) under the Company Stock Plans; and (C) issue shares of Company Common Stock upon the exercise of Warrants or conversion of Convertible Securities;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company, the Purchased Companies or any of their Subsidiaries;
(iv) amend the certificate of incorporation, articles of association, bylaws or other organizational documents of the Company, the Purchased Companies or any of their Subsidiaries;
(v) (A) increase the annual level of compensation (including equity compensation, whether payable in cash, stock or other property) of any employee, director or consultant of the Company, the Purchased Companies or any of their Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Company, the Purchased Companies or any of their Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employmentemployment (other than to the extent providing for "at-will" employment and without severance), deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Company, the Purchased Companies or any of their Subsidiaries is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company, the Purchased Companies or any of their Subsidiaries in his or her capacity as a director, officer or employee of the Company, the Purchased Companies or any of their Subsidiaries; provided, however, that notwithstanding the foregoing, the Company may amend the Company Stock Plans to accelerate the vesting of options issued under the Company Stock Plans in connection with the Transaction;
(iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness for trade payables incurred in the Ordinary Course of Business since and amounts outstanding under existing credit facilities as of the Balance Sheet Datedate of this Agreement, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (zcontingent or otherwise) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; provided that the Purchased Companies and their Subsidiaries may borrow or draw down under existing credit facilities so long as the aggregate principal amount outstanding thereunder as of the Effective Time does not exceed the amount outstanding thereunder as of the date of this Agreement;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedExceptions and leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company, the Purchased AssetsCompanies or any of their Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company, the Purchased Assets (Companies and their Subsidiaries except for fair consideration sales of products to customers in the Ordinary Course of Business; provided, however, that the Company may sell, transfer or convey its shares of capital stock of Metron Technology (Hong Kong) Limited, Metron Technology (Far East) Limited or Metron Technology (Nordic) AB to one or more Purchased Companies or Subsidiaries selected in consultation with the Purchaser (it being understood that, effective upon such sale, assignment, transfer or conveyance, the entity whose shares have been sold, assigned, transferred or conveyed shall be deemed, for purposes of the this Agreement, to be a "Subsidiary" and not a "Purchased Company;").
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Company, the Purchased Companies or any of their Subsidiaries except pursuant to existing Contracts listed in the Ordinary Course of BusinessSchedule 6.2(b)(ix);
(viix) enter into any commitment for capital expenditures of the Company, the Purchased Companies and their Subsidiaries in excess of $25,000 for any individual commitment and $250,000 per quarter for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company, the Purchased Companies or any of their Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company, the Purchased Companies or any Employeeof their Subsidiaries;
(viiixii) introduce any material change with respect to the operation of the BusinessCompany, the Purchased Companies or any of their Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, take any action to cause any material change in any contribution of its product or service lines to its revenues or net income, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiii) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into any transaction or to make or enter into, modify or renew into any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxiv) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xv) enter into any ContractContract or transaction between the Company on one hand and any Purchased Company or their Subsidiaries on the other hand;
(xvi) (A) make or rescind any election relating to Taxes, understanding settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes or (B) except as required by applicable law or GAAP, make any change to any of its Tax or reporting or accounting practices, methods or policies;
(xvii) enter into any contract or agreement or commitment that which restrains, restricts, limits or impedes the ability of the BusinessCompany, the Purchased Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea;
(xixviii) terminatechange its fiscal year, amendrevalue any of its assets or except as required under GAAP or applicable Law, restatemake any changes in financial accounting methods, supplement principles or waive practices except as required by GAAP or by a Governmental Body and as concurred to by the Company's independent public accountants;
(xix) commence or settle any rights under Legal Proceeding;
(xx) enter into any (A) Contract that if in effect as of the date hereof would be a Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability Contracts of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts type set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSchedule 6.2(b)(xx); or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could reasonably be expected to result in any of the conditions to the Closing condition set forth in Section 7.2(a) not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companysatisfied.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Metron Technology N V)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoParent (which shall not be unreasonably withheld, conditioned or delayed), between the date hereof and the Closing, the Company and its Subsidiaries, as applicable, shall:
(i) conduct the its Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business Business operations, organization (including officers and Employeesemployees) and goodwill of the Company and its Subsidiaries and (B) preserve the present relationships with Persons having business dealings with the Company and its Subsidiaries (including customers and suppliers), provided that nothing in this subparagraph (ii) shall be construed as requiring the Company and its Subsidiaries to make any payment or to provide any consideration in order to comply with its obligations under this subparagraph (ii);
(iii) maintain (A) all of the material tangible assets and properties of, or used by, the Company consistent with past practiceand its Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and its Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;Execution Date; and
(iv) (A) maintain the books, accounts and records of the Company and its Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditBusiness, and (C) comply with all material contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companyits Subsidiaries.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoParent (which shall not be unreasonably withheld, conditioned or delayed) or as set forth in Schedule 6.2(b), the Company and its Subsidiaries shall not:
(i) (A) increase incur or modify in any material respect the salary or other compensation terms of any director Indebtedness, or Employee of the Company except assume, guarantee, endorse (other than endorsements for normal year-end increases deposit or collection in the Ordinary Course of Business), (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable responsible for obligations of any other Person, except for (1) Indebtedness incurred, assumed or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred guaranteed in the Ordinary Course of Business since in amounts not in excess of One Hundred Thousand Dollars ($100,000) in the Balance Sheet Dateaggregate;
(ii) grant, sell or issue, or commit to grant, sell or issue, any equity or equity based award or rights to acquire, any shares of capital stock or any other securities or any securities convertible into shares of capital stock or any other securities (including any options to acquire capital stock and other equity awards), except for (1) the issuance of shares of Company Common Stock pursuant to the terms of any shares of Company Preferred Stock outstanding on the Execution Date and disclosed on Schedule 4.4(a) that are convertible into shares of Company Common Stock, (2) the sale or issuance of shares of Company Common Stock pursuant to the exercise of Company Options outstanding on the Execution Date and disclosed on Schedule 4.4(b), or (z3) any commitment by the Company or its Subsidiaries to do any of the matters described in the foregoing clauses (1)-(2);
(iii) declare, pay or incur any obligation to pay any dividend or other distribution (whether payable in cash, stock or property) on its capital stock or other securities or declare, make or incur any obligation to make any distribution or redemption with respect to capital stock or other securities, except that the provisions of this clause (iii) shall not limit, prohibit or prevent the Company or its Subsidiaries from (1) repaying any Indebtedness set forth on in accordance with its terms so long as the Company Disclosure Schedule 4.5; or its Subsidiaries incurred such Indebtedness prior to the Execution Date or (B2) paying or incurring any obligation to pay any accruing dividend with respect to the Company Preferred Stock if the Company and its Subsidiaries is required to do so under its certificate of incorporation;
(iv) mortgage, pledge or otherwise encumber (including by creating any Lien that is not a Permitted Exception) any assets of the Company or its Subsidiaries or sell, transfer, license or otherwise dispose of any assets of the Company or its Subsidiaries except in the Ordinary Course of Business;
(v) amend or propose to amend its certificate of incorporation, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness bylaws or other Liability; comparable organizational documents;
(vi) incur or authorize any capital expenditures or any obligations or liabilities in respect of capital expenditures;
(Dvii) make any loans, advances of or capital contributions to, or investments in, any other Person;
(iiiviii) subject to assign, release or forgive any Lien Indebtedness;
(ix) split, combine, reclassify, repurchase, redeem or otherwise encumber oracquire any shares of Company Capital Stock, except for Permitted Exceptionsrepurchases of unvested shares of Company Common Stock held by employees, permitdirectors, allow consultants or suffer advisors to be subjected to any Lien the Company, at cost or otherwise encumberedless, any in connection with termination of employment or other service relationship with the Purchased AssetsCompany or the occurrence or non-occurrence of other events in accordance with the applicable vesting terms of such unvested shares;
(ivx) abandon, cease to prosecute, fail to maintain, sell, license, assign or encumber any Company Permit or other material assets (other than with respect to Company Intellectual Property);
(xi) merge or consolidate with any Person or adopt a plan of complete or partial liquidation (or resolutions providing for or authorizing such liquidation), dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xii) form any Subsidiary or acquire any material properties (including by merger, consolidation, acquisition of stock or assets or sellotherwise), assigndirectly or indirectly, licenseany assets, transfersecurities, conveyproperties, lease interests or otherwise dispose businesses other than the acquisition of any of the Purchased Assets (except for fair consideration assets in the Ordinary Course of BusinessBusiness with a purchase price (including assumed Indebtedness) of that does not exceed One Hundred Thousand Dollars ($100,000) in the Companyaggregate;
(vxiii) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease unless such Material Contract is entered into or Intellectual Property License, other than renewed by the Company in the Ordinary Course of Business or unless such Material Contract can be terminated by the Company from and after the Closing without any penalty, payment or Liability by giving prior written notice of terminate of ninety (90) days or less;
(xiv) make any change in (whether by amendment or modification or otherwise) any material right under any Material Contract, unless such Material Contract can be terminated by the Company from and after the Closing without any penalty, payment or Liability by giving prior written notice of terminate of ninety (90) days or less;
(xv) terminate any Material Contract or waive, release or assign any material right under any Material Contract;
(xvi) make any change in any method of accounting or accounting practice;
(xvii) (A) make, change or revoke any material Tax election; (B) Permit;
adopt or change any accounting method in respect of Taxes; (xiiC) file any amended Tax Return; (D) enter into any Tax allocation agreement, Tax sharing agreement, pre-filing or advance pricing agreement or Tax indemnity agreement; (E) settle or compromise any pending claim, notice, audit report or threatened Legal Proceeding assessment in respect of any Taxes; (F) surrender or forfeit any material Tax refund; or (G) Consent to any extension or waiver of the limitation period applicable to any Tax Return or any claim or claims for, or that would result assessment in a loss respect of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000any Taxes;
(xiiixviii) change waive, release, assign, compromise, settle or modify its creditagree to settle any Legal Proceeding involving a Person other than Parent, collection Merger Sub or payment policies, procedures any of their respective Affiliates (including any Legal Proceeding relating to this Agreement or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Transactions);
(xivxix) take (A) sell, assign, license, sublicense, encumber, impair, abandon, fail to use commercially reasonable efforts to diligently maintain, transfer or otherwise dispose of any action which would adversely affect the ability right, title or interest of the parties Company in any Company Intellectual Property (other than non-exclusive licenses or sublicenses of Company Intellectual Property to consummate contractors of the transactions contemplated Company for purposes of carrying out research, development and manufacturing activities for and on behalf of the Company), (B) amend, waive, cancel or modify any rights in or to the Company Intellectual Property, (C) fail to use commercially reasonable efforts to diligently prosecute the patent applications owned by this Agreementthe Company or (D) divulge, furnish to or make accessible any trade secrets within Company Intellectual Property to any third party who is not subject to an enforceable written agreement to maintain the confidentiality of such trade secrets;
(xvxx) (A) establish, adopt, enter into, amend or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the operating agreement Execution Date (other than amendments required by law or to comply with the Code), (B) increase the compensation or fringe benefits of any current or former employee, director, officer or independent contractor of the Company (except for (x) increases required to comply with applicable Law, (y) increases required pursuant to any Company Employee Plan in effect on the date hereof, and (z) bonuses paid out of Initial Purchase Price amounts, as disclosed to Parent prior to the date hereof and set forth in the Initial Payment Allocation Schedule), (C) grant any severance or termination pay to any present or former director, officer, employee or independent contractor of the Company, or (D) loan or advance any money or other property to any present or former director, officer or employee of the Company;
(xvixxi) agree hire any employee, independent contractor or consultant to materially increase Liabilities from be employed by or perform services on behalf of the amounts set forth on Company;
(xxii) correspond, communicate or consult with the Balance Sheet except in FDA or similar Governmental Body outside the Ordinary Course of Business under loan without providing Parent with prior written notice and the opportunity to consult with the Company with respect to such correspondence, communication or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementconsultation; orand
(xviixxiii) directly or indirectly take, agree to do anything (A) prohibited by this Section 6.2, (B) that would make take or otherwise permit to occur any of the representations and warranties of the Company actions described in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (CSections 6.2(b)(i) that could be reasonably expected to have a Material Adverse Effect with respect to the Companythrough 6.2(b)(xxii).
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement Agreement, as set forth in Section 5.1 of the Disclosure Schedule or with the prior written consent of NewcoNess, between during the period from the date hereof and of this Agreement to the Closing, the Company shall:
(i) APP Holders will, to the extent within their powers, cause APP and its Subsidiaries to, conduct their respective businesses and operations according to their ordinary and usual course of business consistent with past practice and will use all reasonable efforts consistent therewith to preserve intact APP’s and its Subsidiaries’ properties, assets and business organizations, to keep available the Business only services of APP’s and its Subsidiaries’ officers and employees and to maintain satisfactory relationships with customers, suppliers, distributors and others having commercially beneficial business relationships with APP and its Subsidiaries’, in each case in the Ordinary Course ordinary course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice. The APP Holders will not, and (B) insurance upon all will not, to the extent within their powers, permit APP or its Subsidiaries, to take any action with the purpose of causing any of the assets and properties of the Company in such amounts and of such kinds comparable conditions to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other Ness’s obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Article VII hereof to not be satisfied. Except as set forth in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property Section 5.1 of the Company.
(b) Without Disclosure Schedule, without limiting the generality of the foregoing, and except as otherwise expressly provided by in this Agreement Agreement, the APP Holders will not, to the extent within their powers, permit APP or with its Subsidiaries, prior to the Closing, without the prior written consent of NewcoNess, the Company shall notto:
(a) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (i) additional shares in the share capital of APP or its Subsidiaries (A) increase the salary including Shares), or securities convertible into or exchangeable for any such shares, or any rights, warrants or options to acquire any such shares or other compensation of convertible securities or (ii) any director other securities in respect of, in lieu of, or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, substitution for, Shares outstanding on the date hereof;
(b) declare or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution on any shares in the share capital of cash APP or other property with respect to the units or other equity interests of the Companyits Subsidiaries;
(iic) (A) createredeem, incur, assume, guarantee, endorse purchase or otherwise become liable acquire any outstanding shares in the share capital of APP or responsible with respect to its Subsidiaries;
(whether directly, contingently d) propose or otherwise) adopt any Indebtedness except (u) the Indebtedness related amendment to the Permitted Exceptions, organizational or governing documents of APP or its Subsidiaries;
(x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (Be) except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, payincur any long-term indebtedness or issue any debt securities or assume, prepay, accelerate, discharge, purchase, repurchase guarantee or satisfy any Indebtedness issued or guaranteed by endorse the Company; (C) materially modify the terms obligations of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiif) subject to (i) increase in any Lien manner the rate or otherwise encumber or, except for Permitted Exceptions, permit, allow terms of compensation or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose benefits of any of the Purchased Assets (its directors, officers or other employees, except for fair consideration as may be allowed under existing employment agreements or such increases as are granted in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, or (ii) of the Company;
pay or agree to pay any pension, retirement allowance or other employee benefit not required or permitted by any existing Plan or other agreement or arrangement to any such director, officer or employee, whether past or present, or (viii) except as provided in Section 6.6 hereof, enter into or agree to enter into amend any merger employment, bonus, severance or consolidation with retirement contract or adopt any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementemployee benefit plan; or
(xviig) agree in writing to do anything (A) prohibited by this Section 6.2, (B) that would make take any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyforegoing actions.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Company Seller shall, and shall cause each of the Companies to:
(i) conduct the Business respective businesses of each of the Companies only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of each of the Company Companies and (B) preserve the its present relationships relationship with Persons having business dealings with each of the Company (including customers and suppliers)Companies;
(iii) maintain (A) all of the assets and properties ofof each of the Companies in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of each of the Company Companies in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of each of the Company Companies in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of each of the Company;Companies; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement Agreement, the Schedules to the Seller's representatives and warranties hereunder or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause each of the Companies not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, any of the Companies;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of any of the Companies or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any of the Companies;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of any of the Companies;
(iv) amend the certificate of incorporation or by-laws of any of the Companies;
(A) increase the salary or other annual level of compensation of any director or Employee employee of any of the Company except for normal year-end increases in the Ordinary Course of BusinessCompanies, (B) increase the annual level of compensation payable or to become payable by any of the Companies to any of their respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the December Balance Sheet, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of any of the Company Companies or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which any of the Company Companies is a party; party or (E) pay involving a director, officer or make employee of any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyCompanies in his or her capacity as a director, officer or employee of any of the Companies;
(iivi) (A) createexcept for trade payables, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedLiens that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of any of the Companies;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of any of the CompanyCompanies except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) cancel or compromise any debt or claim or waive or release any material right of any of the Companies except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice;
(x) make any contribution to a Capital Construction Fund in respect of any fiscal period subsequent to its most recently completed fiscal year (April 30, 2000 in the case of G&B, September 30, 2000 in the case of Gilco, March 31, 2000 in the case of GCB and December 31, 2000 in the case C&C) or enter into any other commitment for capital expenditures of any of the Companies in excess of $10,000 for any individual commitment and $50,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of any of the Companies or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to any of the Companies;
(xii) introduce any material change with respect to the operation of any of the Companies, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit any of the Companies to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xiv) permit any of the Companies to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement permit any of the CompanyCompanies to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, the Seller or any Affiliate of the Seller;
(xvi) agree to materially increase Liabilities depart from any normal drydock and maintenance practices or discontinue replacement of spares in operating its fleet;
(xvii) defer any scheduled maintenance on any Company Vessels;
(xviii) enter into any charter for its vessels which have a term of longer than 60 days at a fixed rate without the amounts set forth on prior written consent of the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementPurchaser (which consent shall not be unreasonably withheld); or
(xviixix) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.1, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of Newcothe other party (which consent shall not be unreasonably withheld or delayed), between the date hereof ▇▇▇▇▇▇▇▇▇▇▇ Entities and the Closing, the Company Schlumberger Entities shall:
(i) conduct the ▇▇▇▇▇▇▇▇▇▇▇ Business or the Schlumberger Business, as the case may be, only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company ▇▇▇▇▇▇▇▇▇▇▇ Business or the Schlumberger Business, as applicable, and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);suppliers of the ▇▇▇▇▇▇▇▇▇▇▇ Business or the Schlumberger Business, as applicable.
(b) Except (i) as set forth on Schedule 7.1, (ii) as required by applicable Law, (iii) maintain (A) all of the assets and properties of, as otherwise contemplated by this Agreement or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain with the books, accounts and records prior written consent of the Company in other party (which consent shall not be unreasonably withheld or delayed), the Ordinary Course of ▇▇▇▇▇▇▇▇▇▇▇ Entities and the Schlumberger Entities shall not solely as it relates to the ▇▇▇▇▇▇▇▇▇▇▇ Business or the Schlumberger Business, respectively:
(Bi) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts as required by applicable Law or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations Employee Benefit Plan in effect as of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)date hereof, including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) materially increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Businesswages generally, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorcompensation, (C) increase the coverage or benefits available under any (materially modify or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus new Employee Benefit Plan (other than company-wide actions not directed at the ▇▇▇▇▇▇▇▇▇▇▇ Employees or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Schlumberger Employees, agents as applicable, affecting substantially all the ▇▇▇▇▇▇▇▇▇▇▇ Entities’ or representatives of the Company Schlumberger Entities’ similarly situated employees) or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is involving a party; ▇▇▇▇▇▇▇▇▇▇▇ Employee or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanySchlumberger Employee, as applicable;
(ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns;
(iii) subject any of the Contributed Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to Exceptions and Liens that will be subjected to any Lien or otherwise encumbered, any released as of the Purchased AssetsClosing;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Contributed Assets (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets);
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother entity;
(vi) cancel or compromise any debt or claim, claim or waive or release any material right of the Company that constitutes a Contributed Asset except in the Ordinary Course of Business;
(vii) enter into any commitment for capital expenditures in excess of $5,000,000 for any individual commitment and $25,000,000 for all commitments in the aggregate;
(viii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementorganization; or
(xviiix) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.1.
Appears in 1 contract
Sources: Master Formation Agreement (Weatherford International PLC)
Conduct of the Business Pending the Closing. (a) From and after the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, but subject to Section 5.2(c), Sellers shall, except with the consent of Buyer or as otherwise required or restricted by Law, pursuant to the Bankruptcy Code or an order of the Bankruptcy Court, (x) operate the Business in the Ordinary Course of Business and (y) without limiting the generality of the foregoing:
(i) use commercially reasonable efforts to keep available the services of its officers and Covered Employees;
(ii) except as related to or the result of the filing or pendency of the Bankruptcy Cases, use commercially reasonable efforts to maintain reasonably satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, consultants, vendors and other Persons having business relationships with the Business (other than payment of pre-petition claims);
(iii) operate the Business and Acquired Assets, in all material respects, in compliance with all Laws applicable to the Business and Sellers. For avoidance of doubt, except as otherwise set forth in Section 2.3(c), all inventory and Merchandise designated for sale on the E-Commerce Platform shall not be offered for sale in any Store, and any inventory and Merchandise designated for sale in a Store shall not be offered for sale on the E-Commerce Platform;
(iv) place orders for Merchandise in a commercially reasonable manner that is consistent with the Buying Plan;
(v) without any obligation to purchase in any quantity of Merchandise for the E-Commerce Business that is not consistent with the Buying Plan, use commercially reasonable efforts to receive Merchandise ordered in accordance with purchase orders;
(vi) upon the written request and at the sole cost and expense of Buyer, arrange for aircraft shipment of any Merchandise agreed to by Sellers in its reasonable discretion that is subject to an E-Commerce Order (“Aircraft Shipping Charges”); provided, however,, that Buyer shall reimburse (or at the request of Sellers directly pay) all costs and expenses associated with such aircraft shipment, including without limitation, all airplane, fuel and freight costs and associated permits, tariffs and taxes. Buyer acknowledges and agrees that any amounts paid in connection with this Section 5.2(a)(vi) shall be in addition to the Purchase Price; and
(vii) use commercially reasonable efforts to identify and remove all Allegedly Infringing Merchandise and Violative Merchandise from the Stores, the Distribution Center and E-Commerce Business.
(b) Except (i) in the Ordinary Course of Business, (ii) as required by applicable Law or by order of the Bankruptcy Court, (iii) as otherwise expressly provided required by this Agreement Agreement, (iv) in accordance with the Buying Plan, or (v) with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shallSellers shall not:
(i) conduct subject any of the Acquired Assets to any Lien, except for permitted post-petition liens and any Lien secured and granted pursuant to any debtor in possession financing order;
(ii) terminate, permit to expire, amend or fail to renew, obtain or preserve any Permit material to the operation of the E-Commerce Business only and the Acquired Assets as a whole;
(iii) make any loans or advances outside of the Ordinary Course of Business;
(iv) enter into any Contract or Lease, including purchase orders, other than Contracts (but not Leases) with a value that do not exceed $250,000 individually or $500,000 in the aggregate;
(v) incur, create, assume, guarantee or become liable for any indebtedness for borrowed money;
(vi) modify, amend, supplement, transfer, or terminate any Contract or Lease, other than Contracts (but not Leases) which are not material to the E-Commerce Business or the Acquired Assets;
(vii) fail to maintain in full force and effect any filings necessary to maintain the material Owned Intellectual Property;
(viii) write up, write down or write off the book value of any assets other than in the Ordinary Course of Business;
(iiix) use its commercially reasonable efforts to (Areject any Contracts or Leases other than as set forth on Section 5.2(b)(ix) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Disclosure Schedule;
(iiix) maintain (A) all of the assets and properties of, or used by, the Company consistent make any new commitment with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable respect to that in effect on the date of this Agreementmaterial capital expenditures;
(ivxi) (Aa) maintain increase the books, accounts and records rate or terms of compensation payable or to become payable to any of the Company officers or employees of the Sellers or (b) increase the rate or terms of any (including entering or adopting any new) bonus, pension or other employee benefit plan covering any of the officers or employees of Sellers;
(xii) waive any of the rights of the Sellers under any confidentiality or non-compete provisions of any Contract;
(xiii) seek to accelerate the receipt of any royalty payments or licensing or other receivables generated by the Sellers, by way of discount or otherwise;
(xiv) other than acquisitions and dispositions of Merchandise in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course acquire, dispose of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire transfer any material properties asset, property or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreementintellectual property right;
(xv) amend pay, settle or compromise any material Litigation or threatened Litigation involving the operating agreement of the CompanySellers, or commence any Litigation;
(xvi) agree change accounting policies or procedures, except as required by a change in GAAP;
(xvii) invalidate or cause the cancellation of any current insurance coverage (without replacement thereof) or fail to materially increase Liabilities from maintain current insurance coverage or suitable renewals thereof providing coverage substantially the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up same as any expiring policy;
(xviii) fail to file any Tax Return when due with respect to the maximum amounts and other terms as in effect on Acquired Assets or the date of this AgreementBusiness; or
(xviixix) agree agree, whether in writing or otherwise, to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company5.2.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) From and after the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, but subject to Section 5.2(c), Sellers shall, except with the consent of Buyer or as otherwise required or restricted by Law, pursuant to the Bankruptcy Code or an order of the Bankruptcy Court, (x) operate the Business in the Ordinary Course of Business and (y) without limiting the generality of the foregoing:
(i) use commercially reasonable efforts to keep available the services of its employees utilized in connection with the operation of the E-Commerce Platform;
(ii) except as related to or the result of the filing or pendency of the Bankruptcy Case, use commercially reasonable efforts to maintain reasonably satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, consultants, vendors and other Persons having business relationships with the Business (other than payment of pre-petition claims);
(iii) operate the Business and Acquired Assets, in all material respects, in compliance with all Laws applicable to the Business and Sellers;
(iv) without any obligation to purchase in any quantity of Merchandise for sale in any Store, use commercially reasonable efforts to receive Merchandise ordered in accordance with purchase orders for Merchandise intended to be sold through the E-Commerce Platform channel; and
(v) use commercially reasonable efforts to identify and remove all Allegedly Infringing Merchandise and Violative Merchandise from any Store, the Corporate/Distribution Center, or the Radial DC.
(b) Except (i) in the Ordinary Course of Business, (ii) as required by applicable Law or by order of the Bankruptcy Court, (iii) as otherwise expressly provided required by this Agreement or (iv) with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shallSellers shall not:
(i) conduct subject any of the Acquired Assets to any Lien, except for permitted post-petition liens and any Lien secured and granted pursuant to any debtor in possession financing order;
(ii) terminate, permit to expire, amend or fail to renew, obtain or preserve any Permit material to the operation of the Business only as a whole;
(iii) make any loans or advances outside of the Ordinary Course of Business;
(iv) enter into any Contract or Lease, excluding purchase orders and insurance renewals, other than Contracts (but not Leases) with a value that do not exceed $100,000 individually or $350,000 in the aggregate;
(v) incur, create, assume, guarantee or become liable for any indebtedness for borrowed money;
(vi) modify, amend, supplement, transfer, or terminate any Contract or Lease, other than Contracts (but not Leases) which are not material to the Business;
(vii) fail to maintain in full force and effect any filings necessary to maintain the material Owned Intellectual Property;
(viii) write up, write down or write off the book value of any assets other than in the Ordinary Course of Business;
(iiix) use its commercially reasonable efforts to (Areject any Contracts or Leases other than as set forth on Section 5.2(b)(ix) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Disclosure Schedule;
(iiix) maintain (A) all of the assets and properties of, or used by, the Company consistent make any new commitment with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable respect to that in effect on the date of this Agreementmaterial capital expenditures;
(ivxi) (Aa) maintain increase the books, accounts and records rate or terms of compensation payable or to become payable to any of the Company officers or employees of the Sellers utilized in connection with the operation of the E-Commerce Platform, except as required by applicable Law or (b) increase the rate or terms of any (including entering or adopting any new) bonus, pension or other employee benefit plan covering any of the officers or employees of Sellers utilized in connection with the operation of the E-Commerce Platform;
(xii) waive any of the rights of the Sellers under any confidentiality or non-compete provisions of any Contract;
(xiii) seek to accelerate the receipt of any royalty payments or licensing or other receivables generated by the Sellers, by way of discount or otherwise;
(xiv) other than acquisitions and dispositions of Merchandise in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course acquire, dispose of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire transfer any material properties asset, property or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreementintellectual property right;
(xv) amend pay, settle or compromise any material Litigation or threatened Litigation involving the operating agreement of the CompanySellers, or commence any Litigation;
(xvi) agree change accounting policies or procedures, except as required by a change in GAAP;
(xvii) invalidate or cause the cancellation of any current insurance coverage (without replacement thereof) or fail to materially increase Liabilities from maintain current insurance coverage or suitable renewals thereof providing coverage substantially the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up same as any expiring policy;
(xviii) fail to file any Tax Return when due with respect to the maximum amounts and other terms as Acquired Assets or the Business;
(xix) agree, whether in effect on the date of writing or otherwise, to do anything prohibited by this AgreementSection 5.2; or
(xviixx) agree fail to do anything (A) prohibited by this Section 6.2, (B) that would make any comply with the terms of the representations and warranties of the Company in this Agreement Interim Cash Collateral Order (or any subsequent interim and/or final order authorizing the Sellers’ use of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companycash collateral).
Appears in 1 contract
Sources: Asset Purchase Agreement (Christopher & Banks Corp)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth on Schedule 6.1, (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement or the terms of the ASA Transactions, or (z) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), the Company shall:
, and shall cause each of the Acquired Companies to use their respective reasonable efforts to (i) conduct the Business only in the Ordinary Course of Business;
, (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill operations of the Company and Business, (Biii) preserve the present relationships with Persons having customers, suppliers and key employees of the Business and (iv) maintain or cause to be maintained in full force and effect all material insurance policies in effect as of the date of this Agreement (or comparable replacement coverage) with respect to the properties, assets or business dealings of the Business.
(b) Prior to the Closing, except (w) as set forth on Schedule 6.1, (x) as required by applicable Law, (y) as otherwise contemplated by this Agreement or the terms of the ASA Transactions, or (z) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), with respect to the Acquired Companies and the Business, the Company shall not, and shall cause each of the Acquired Companies not to:
(i) issue, sell, or dispose of (or authorize the issuance, sale or disposition of), any shares of capital stock, ownership interests or voting securities, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any other ownership interests or any voting securities (including stock appreciation rights, phantom stock or similar instruments), of any Acquired Company (including customers and suppliersexcept in each case in conformity with the Company’s representations or as set forth in this Agreement for any (a) issuance of Shares upon the vesting of RSUs outstanding as of the date of this Agreement in accordance with the terms of any RSU Agreements, (b) vesting of Phantom Shares under the Deferred Compensation Plan, outstanding as of the date of this Agreement in each case, in accordance with the terms of any Benefit Plan or any applicable award agreement thereunder, or (c) issuance, sale or disposition to any Acquired Company by any other Acquired Company);
(ii) adopt any amendment to the Organizational Documents of the Acquired Companies, change the authorized or issued capital stock or other equity interest of the Acquired Companies, or otherwise reclassify combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, the capital stock or other equity interest of any Acquired Company;
(iii) maintain (A) all of the assets and properties of, pay or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such distribute any amounts and of such kinds comparable to or take any action that in effect on the date of this Agreementwould constitute Leakage;
(iv) (A) maintain the booksadopt a plan or agreement of complete or partial liquidation dissolution, accounts and records restructuring, merger, consolidation, recapitalization or other reorganization of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Acquired Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, conveyconvey or lease (whether by merger, lease consolidation or otherwise dispose disposition of stock or assets) any material portion of any of the Purchased Assets (Material Assets, except for fair consideration in each case in the Ordinary Course of Business) Business or for the purpose of the Company;
(v) except as provided in Section 6.6 hereofdisposing of obsolete, enter into worthless or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Persondamaged assets;
(vi) cancel settle or compromise any debt or material claim, action, suit, proceeding or waive investigation with respect to the Business or release any material right Acquired Company in excess of the Company except in the Ordinary Course of BusinessOne Million Dollars ($1,000,000);
(vii) except as contemplated under a Material Contract, enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make into any commitment for capital expenditures of the Business in excess of Twenty-Five Million Dollars ($25,000,000) for all commitments in the aggregate, other than to replace or incur any Liability to any labor organization with respect to any Employeerepair obsolete, worthless or damaged assets;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make enter into, materially amend, fail to perform in a material respect, or terminate, any change in product specifications or prices or terms of distributions of such productsMaterial Contract;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contractincur any Funded Indebtedness except to the extent permitted pursuant to Section 6.01 of the ▇▇ ▇▇▇▇▇▇ Credit Agreement, Real Property Lease(B) repay any Funded Indebtedness other than Permitted Payments, Personal Property Lease or Intellectual Property License, and (C) other than in the Ordinary Course of Business Business, modify in any material respect in a manner adverse to the Company the terms of any indebtedness for borrowed money, or assume, guarantee or endorse the obligations of any Person other than any Acquired Company; (Bx) Permit;
(xii) make, change or revoke any material Tax election or settle or compromise any pending material Liability for Taxes, change any annual Tax accounting period, change any material method of Tax accounting, file any material amended Tax Return, or threatened Legal Proceeding consent in writing to any extension or waiver of the statute of limitations period applicable to any material Tax claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000assessment;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 1 contract
Sources: Merger Agreement (Affinia Group Intermediate Holdings Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, except as provided in Section 4.23(vii), above, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, except as provided in Section 4.23(vii), above, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Sellers or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Sellers; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business Pending the Closing. (a) Except as set forth on Schedule 6.2, as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closing, the Company shall:
(i) conduct the Business business of the Company only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employeesemployees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers), in each case, in the Ordinary Course of Business;
(iii) maintain (A) all of the material assets and properties of, or used by, the Company consistent with past practicein their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet utilizing normal procedures in the Ordinary Course of Business utilizing normal procedures and and, except in the Ordinary Course of Business, without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply in all material respects with all contractual and other obligations of the Company;
(v) comply in all material respects with the Company’s capital expenditure plan of the Company budget for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2013, as previously Made Available to Purchaser in writing, including making such capital expenditures in the amounts and at the times in all material respects as set forth in such plan;budget; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance Laws and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanyEducational Law.
(b) Without limiting the generality of the foregoing, except as set forth on Schedule 6.2, as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), from the date hereof until the Closing, the Company shall not:
(i) except with respect to cash dividends consistent with past practice that are in such amounts as would not adversely affect the Company’s working capital needs, declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company, or amend the terms of any outstanding securities of the Company;
(iii) amend the articles of incorporation or code of by-laws or equivalent organizational or governing documents of the Company;
(iv) (A) increase the salary or other compensation of any director director, officer or Employee employee of the Company Company, except for normal year-end increases in the Ordinary Course of BusinessBusiness not to exceed three (3%) of then-current base compensation, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director, officer, employee or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement covering such individuals, except as required by Law, or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) agreement to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company);
(iiv) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness Indebtedness, except (u) under the Indebtedness related to the Permitted ExceptionsCompany’s Revolving Note dated December 12, (x) the Indebtedness reflected 2012 in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course favor of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Fifth Third Bank; (B) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by of the Company; or (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonIndebtedness;
(iiivi) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of, or used by, the Company;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration material properties or assets of, or used by, the Company, other than in the Ordinary Course of Business) of the Company;
(vviii) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new line of business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities securities, of any other Person;
(viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course of Business;
(viix) enter into any commitment for capital expenditures of the Company in excess of $150,000 for any individual commitment and $500,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeethe Company;
(viiixii) other than in the Ordinary Course of Business, (A) introduce any material change with respect to the operation of the BusinessCompany, including any material change in the types, nature, composition or quality of products its programs or services, or, or (B) make any material change in program specifications or prices or change its tuition policies or grant any discount for any student not in accordance with such policies;
(xiii) enter into any transaction other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract Contract, which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business or in accordance with the Company’s obligations under existing Contracts, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons;
(xv) (A) make, change or revoke any Tax election, settle or compromise any Tax claim or liability or enter into a settlement or compromise, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes, or (B) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and the Company shall have complied with its obligations under Section 8.6(b)(i);
(xvi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes in any material respect the ability of the Business, or the ability of Newco or Purchaser, Company to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons, other than in the Ordinary Course of Business;
(xixvii) terminateterminate (except for expirations requiring no further acts of the parties thereto), amend, restate, supplement or waive any material rights under any (A) Material Contract, Real Property Lease, Lease or Personal Property Lease or Intellectual Property License(B) Permit, in each case, other than in the Ordinary Course of Business or (B) PermitBusiness;
(xiixviii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that couldwould, individually or in the aggregate, reasonably be expected to be greater than $50,000150,000;
(xiiixix) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesLiabilities;
(xivxx) take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that which would make any of the representations and warranties of the Company Selling Stockholders in this Agreement or any of the Selling Stockholder Documents or Company Documents untrue or incorrect in any material respect or could would result in any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect Effect; and
(xxii) fail to pay any required maintenance or other similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any applications for registration of any material Intellectual Property.
(c) Except as otherwise expressly provided in this Agreement or with respect the prior written consent of Purchaser, from the date hereof until the Closing, the Selling Stockholders shall not transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other ownership interests in, the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Public Education Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business business of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including including, without limitation, customers and suppliers)) with the Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companyincluding, without limitation, Environmental Laws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) take any action out of the ordinary course of business or inconsistent with past practices to generate cash or increase the Adjusted Tangible Net Book Value;
(ii) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(iii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iv) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(v) amend the articles of incorporation or bylaws of the Company;
(vi) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections of receivables (whether or not past due) or failure to pay or delay payment of payables or other liabilities;
(vii) except as set forth on SCHEDULE 6.2(b)(vii), (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, other than in the ordinary course of business consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan Employee Benefit Plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iiviii) reduce the volume of production or purchases of inventory, other than as a result of then current reasonable business demands in the ordinary course of business consistent with past practice;
(Aix) createexcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiix) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivxi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company;
(vxii) cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice;
(xiii) enter into any commitment for capital expenditures of the Company in excess of $10,000 for any individual commitment and $50,000 for all commitments in the aggregate;
(xiv) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(xv) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xvi) permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xvii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vixviii) cancel except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or compromise any debt or claimloans to, or waive pay any fees or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter intoexpenses to, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size with, any Seller or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment Affiliate of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixix) agree to do anything (A) prohibited by this Section 6.2, (B) that SECTION 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of the conditions to time through and including the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyDate.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Stationers Supply Co)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, between prior to the date hereof Closing the Owner shall, and shall cause the Closing, the Company shallSeller to:
(i) conduct Conduct the Business of the Seller only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Seller and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Seller;
(iii) maintain Maintain (A) all of the assets Assets and properties ofof the Seller in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company Seller in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Seller in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Seller; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, prior to the Company Closing the Owner shall not, and shall cause the Seller not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the membership interests of the Seller or repurchase, redeem or otherwise acquire any outstanding membership interests or other securities of, or other ownership interests in, the Seller;
(ii) Transfer, issue, sell or dispose of any membership interests or other securities of the Seller or grant options, warrants, calls or other rights to purchase or otherwise acquire membership interests of the capital stock or other securities of the Seller;
(iii) Effect any recapitalization, reclassification, or like change in the capitalization of the Seller;
(iv) Amend the certificate of formation or operating agreement of the Seller;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessSeller, (B) increase the annual level of compensation payable or to become payable by the Seller to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Seller or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Seller is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the CompanySeller in his or her capacity as a director, officer or employee of the Seller;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, lien (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or Assets (whether tangible or intangible) of the Seller;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanySeller except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Seller except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures out of the ordinary course;
(xi) Permit the Seller to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Seller to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000person;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Seller to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Owner or payment policies, procedures or practices, including acceleration any affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Owner; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of the conditions to time through and including the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyDate.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement and the schedules attached hereto or with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to and through the Closing Date, pursuant to the Enron Purchase Agreement, Seller shall request, and use commercially reasonable efforts to have such request honored, that the Transfer Group Companies (A) conduct their respective businesses in all material respects in the Ordinary Course of Business, and (B) preserve in all material respects the present business operations, organization and goodwill of the Transfer Group Companies. For the avoidance of doubt, the foregoing shall not require Seller or any of the Transfer Group Companies to make any payments, incur any costs or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence or other action is required by Applicable Law, by contractual obligation with such third parties or to operate in the Ordinary Course of Business.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned), pursuant to the date hereof Enron Purchase Agreement, Seller shall request, and shall use commercially reasonable efforts to have such request honored, that none of the Closing, the Company Transfer Group Companies shall:
(i) conduct except as set forth on Schedule 6.2(b)(i) or as contemplated by the Business only Contribution Agreement or in the Ordinary Course schedules thereto, declare, set aside, make or pay any non-cash dividend or other non-cash distribution in respect of Businessthe capital stock of any Transfer Group Company or repurchase, redeem or otherwise acquire for non-cash consideration any outstanding shares of the capital stock or other securities of, or other ownership interests in, any Transfer Group Company;
(ii) use its commercially reasonable efforts to (A) preserve the present business operationsexcept as set forth on Schedule 6.2(b)(ii), organization (including officers and Employees) and goodwill transfer, issue, sell or dispose of any shares of capital stock or other securities of any of the Company and (B) preserve Transfer Group Companies or the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all 500,000 common units of Northern Border beneficially owned by Northern Plains as of the assets and properties ofdate of this Agreement or grant options, warrants, calls or used by, the Company consistent with past practice, and (B) insurance upon all other rights to purchase or otherwise acquire shares of the assets and properties capital stock or other securities of the Company in such amounts and Transfer Group Companies or the 500,000 common units of such kinds comparable to that in effect on Northern Border beneficially owned by Northern Plains as of the date of this Agreement;
(iii) effect any recapitalization, reclassification, stock split, or like change in the capitalization of any Transfer Group Company;
(iv) except as set forth on Schedule 6.2(b)(iv), amend the certificate of incorporation, bylaws or other organizational documents of any of the Transfer Group Companies;
(v) except as provided under the severance and retention plans and other employment arrangements listed on Schedule 6.2(b)(v) and except as would not create or increase any liability of any Northern Plains Group Company beyond any amount reflected on the Balance Sheets, (A) maintain materially increase the books, accounts and records annual level of compensation of any employee of the Company in the Ordinary Course of Business, Transfer Group Companies (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than increases in the Ordinary Course of Business utilizing normal procedures and without discounting that in the aggregate will not result in a material increase in the benefits or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations compensation expense of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vTransfer Group Companies taken as a whole), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant of the Transfer Group Companies, other than in the Ordinary Course of Business, (C) materially increase the coverage or benefits available under any (or, except as permitted under clause (D) or as provided on Schedule 6.2(b)(v), create or adopt any new) severance payBenefit Arrangement, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan Employee Benefit Plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Transfer Group Companies or otherwise materially modify or amend or terminate any such arrangement or plan or arrangement (D) other than in the Ordinary Course of Business, hire any person or enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the any Transfer Group Company is a party; party or involving a director, officer or employee of the Transfer Group Companies in his or her capacity as a director, officer or employee of the Transfer Group Companies, other than (E1) pay or make any dividend or distribution of cash or other property with respect to the units any Person who fills a vacant position or other equity interests of the Company;
(ii2) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently a technical consulting engagement; provided that any such agreement or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, amendment (x) the Indebtedness reflected has a term of one year or less, and in the Balance Sheetcase of (1), (y) the Indebtedness incurred provides for no increase in compensation other than in the Ordinary Course of Business since and, (y) in the Balance Sheet Datecase of (2), will not provide the technical consultant with more than $200,000 of base annual salary, or (z) in the Indebtedness case of hirings, agreements and amendments that do not meet the requirements of subclauses (x) or (y) will not, when aggregated with all other such hirings, agreements and amendments that do not meet the requirements of subclauses (x) or (y), require total payments of base annual salary in excess of $2,000,000 or payments to any individual in excess of $350,000.
(vi) except as set forth on Company Disclosure Schedule 4.5; 6.2(b)(vi) and except for (A) trade payables, (B) indebtedness under existing lines of credit, (C) any extension, renewal or refinancing of existing indebtedness, (D) indebtedness for borrowed money incurred or guarantees issued in the Ordinary Course of Business and (E) indebtedness in an amount sufficient to allow the Transfer Group Companies to make any required capital contributions in accordance with the terms of the Northern Border Partnership Agreement, borrow monies for any reason, draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person (other than another Transfer Group Company or any Northern Border Company);
(vii) subject any of the material properties or assets (whether tangible or intangible) of the Transfer Group Companies to any Lien, except for (A) Permitted Exceptions or (B) Liens arising in the Ordinary Course of Business or by operation of Law, or subject the Equity Interest to any Lien;
(viii) except as set forth on Schedule 6.2(b)(viii), (A) acquire any properties or assets other than in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any such acquisitions of the Purchased Assets;
(iv) acquire any material properties or assets with a fair market value of up to $5,000,000 in the aggregate or (B) sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration material properties or assets of the Transfer Group Companies other than in the Ordinary Course of Business) , except for any such dispositions of properties or assets with a fair market value of up to $5,000,000 in the Companyaggregate;
(vix) until written notice is provided to Purchaser, enter into any labor or collective bargaining agreement of the Transfer Group Companies, through negotiation or otherwise, or make any material commitment or incur any material liability to any labor organization with respect to the Transfer Group Companies;
(x) except as set forth on Schedule 6.2(b)(x), repurchase, discharge or satisfy any claim, debt or obligation of any of the Transfer Group Companies in an amount in excess of $2,000,000 in the aggregate, other than (A) in the Ordinary Course of Business, (B) pursuant to the terms of any Contract as in effect on the date of this Agreement or permitted to be entered into hereafter or (C) in the pursuit, prosecution or resolution of any pending FERC proceedings;
(xi) permit any of the Transfer Group Companies to enter into, or agree to enter into, any merger or consolidation with, any corporation or other entity;
(xii) pursuant to or within the meaning of the Bankruptcy Code or any similar federal, state or foreign law for the relief of debtors, commence a voluntary case, consent to the entry of an Order for relief against any of them in an involuntary case, consent to the appointment of a receiver, trustee, assignee, liquidator or similar official of them or for all or substantially all of its property or assets, or make a general assignment for the benefit of its creditors;
(xiii) fail to maintain, in full force and effect, to the extent commercially reasonably available, insurance coverage that is equivalent in all material respects to the insurance coverage currently in effect for the Transfer Group Companies under the Insurance Policies or comparable insurance; provided, however, that Seller shall not be in breach of this Section 6.2(b)(xiii) if any current insurer refuses to renew or continue to extend insurance coverage to the Transfer Group Companies so long as Seller uses commercially reasonable efforts to obtain equivalent insurance coverage from another reputable insurer and nothing herein shall prevent Seller from replacing any existing insurance from a current insurer with substantially equivalent insurance from another reputable insurer;
(xiv) amend, modify or change the Principal Contribution Transaction Documents (other than with respect to the Sublease and Tax Sharing Agreement and amendments contemplated in the Enron Purchase Agreement, including as provided in Section 6.6 hereof, enter into or agree to enter into 8.1(g) of the Enron Purchase Agreement);
(xv) except as set forth on Schedule 6.2(b)(xv) make any merger or consolidation with any Person, and not engage in any new business or invest in, make a single loan, advance or capital contribution to, or otherwise acquire investment in, any Person who is not a Transfer Group Company or Northern Border Company (or any entity in which a Northern Border Company has an ownership interest) in excess of $5,000,000 or a series of such loans, advances and capital contributions to, or investments in, any such Person in excess of $15,000,000 in the securities aggregate, except for loans, advances, capital contributions and investments (A) pursuant to and in accordance with the terms of any Person;
(vi) cancel or compromise any debt or claimMaterial Contract, in each case existing as of the date of this Agreement, or waive or release any material right of the Company except (B) in the Ordinary Course of Business;
(viixvi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwiseexcept as set forth on Schedule 6.2(b)(xvi), make or commit to make any commitment single capital expenditure in excess of $5,000,000 or incur any Liability commit to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation make a series of the Business, including any material change capital expenditures in excess of $15,000,000 in the types, nature, composition or quality of products or services, oraggregate (in each case, other than capital expenditures included in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or capital forecast previously provided to Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement); or
(xvii) authorize, or commit or agree to do anything (A) prohibited by this Section 6.2take, (B) that would make any of the representations and warranties of the Company actions referred to in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or paragraphs (Ci) that could be reasonably expected to have a Material Adverse Effect with respect to the Companythrough (xvi) above.
Appears in 1 contract
Sources: Purchase Agreement (Oneok Inc /New/)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;; 039996.0183 NEW YORK 105505 v1
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of applicable to the operation the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Companies or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompanies, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of e the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liabilityreceivables; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;039996.0183 NEW YORK 105505 v1
(iiivii) subject Subject to any Lien or otherwise encumber or, lien (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of either of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures out of the ordinary course;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit either of the Companies to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;any Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (CTT International Distributors Inc.)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.3(a), (ii) as required by applicable Law or Educational Law, (iii) as otherwise expressly provided contemplated by this Agreement Agreement, or (iv) with the prior written consent of NewcoParent (such consent not to be unreasonably withheld, between the date hereof and the Closing, conditioned or delayed) the Company shall:
, and shall cause the Company Subsidiaries to use commercially reasonable efforts to: (iA) conduct the respective businesses of the Company and Company Subsidiaries in the Ordinary Course of Business only (except where such conduct would expressly conflict with the covenants set forth herein or other obligations under this Agreement), (B) preserve intact their present business organization, goodwill, and the relationships, services, and business of the officers, employees, faculty, consultants, students and suppliers of the business (C) maintain the assets in operating condition and repair (subject to normal wear and tear in light of their respective ages), (D) maintain marketing and promotional activities and expenditures and student enrollment related activities and expenditures for the business in the Ordinary Course of Business;
, (E) (i) maintain in the Ordinary Course of Business in all material respects, all of its current credit, collections, and payment policies, procedures and practices, (ii) use its commercially reasonable efforts collect accounts receivable in the Ordinary Course of Business consistent with current collection policies, procedures and practices and (iii) except where subject to a good faith dispute, pay all accounts payable in the Ordinary Course of Business, (AF) preserve promptly deliver to Parent a true, correct and complete copy of each Material Contract that is entered into in respect of the present business operationsprior to the Closing; provided, organization that any breach of this clause (including officers F) shall not be considered in determining compliance with the condition set forth in Section 9.1(b), (G) administer and Employees) and goodwill of operate the Company and (B) preserve the present relationships with Persons having business dealings with the Company Subsidiaries in all material respects in accordance with all Laws, Educational Laws, Permits and Educational Approvals, and (including customers H) obtain the written consent of the lessor under the San Marcos Lease as a result of a change of control of USAHS (and suppliersthe Company shall pay any one-time expenses incurred in connection obtaining such consent);.
(b) Other than (i) as set forth on Schedule 7.3(b), (ii) as required by applicable Law or Educational Law, (iii) maintain (A) all of the assets and properties ofas otherwise expressly contemplated by this Agreement, or used by(iv) with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company consistent with past practiceshall not, and (B) insurance upon all of the assets and properties of shall not permit the Company Subsidiaries to:
(i) transfer or issue (other than pursuant to the exercise or settlement of awards under the Option Plan outstanding on the date of this Agreement in such amounts and of such kinds comparable accordance with their present terms or as required to that comply with any Company Plan as in effect on the date of this Agreement;
) to any Person (ivother than the Company or the Company Subsidiaries) (A) maintain the books, accounts and records any Equity Interests or rights to acquire Equity Interests of any of the Company in the Ordinary Course of Business, (B) continue Subsidiaries or issue any Equity Interests or rights to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests acquire Equity Interests of the Company;
(ii) make or declare any cash or non-cash dividend or cash or non-cash distribution;
(Aiii) createamend the certificate of incorporation, incurbylaws or comparable organizational documents of the Company or any of the Company Subsidiaries;
(iv) except pursuant to any Contract or Company Plan, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred base salary increases in the Ordinary Course of Business since if less than three percent (3%) for employees with annual base compensation of $150,000 or less, (A) increase the Balance Sheet Dateamount of any bonus, salary or other compensation (including severance benefits) to any employee or other individual service provider of the Company or any of the Company Subsidiaries, or enter into any employment, service or severance agreement with any such employee or service provider, other than “at-will” offer letters or employment or service agreements that may be terminated on thirty (z30) the Indebtedness set forth on Company Disclosure Schedule 4.5; days’ or less notice without severance or fees, with annual base compensation exceeding $150,000, (B) except establish, adopt, enter into, modify or terminate any Company Plan (in each case, other than any such action that is ministerial in nature or that does not result in any material increase in cost or liability to Parent following the Ordinary Course of BusinessClosing), pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially grant any change in control, retention or transaction bonuses or similar awards related to the Transactions, or amend or modify the terms of any Indebtedness or other Liability; such outstanding awards, in each case that are not fully paid at the Closing or (D) make accelerate the vesting, payment or funding under any loans, advances of capital contributions to, or investments in, any other PersonCompany Plan;
(iiiv) subject to hire or terminate any Lien employee, independent contractor or otherwise encumber or, except other service provider (other than voluntary resignations or terminations for Permitted Exceptions, permit, allow cause) whose annual base compensation or suffer to be subjected to salary exceeds $150,000;
(vi) enter into any Lien commitment for capital expenditures of the Company or otherwise encumbered, any of the Purchased AssetsCompany Subsidiaries to be made following the Closing outside of the Ordinary Course of Business and in excess of the aggregate amount set forth in the budget for the Company and the Company Subsidiaries for such portion of the applicable fiscal year;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (properties or assets of the Company or any of the Company Subsidiaries, except for fair consideration properties or assets sold, assigned, licensed, transferred, conveyed or otherwise disposed of in the Ordinary Course of Business) , or assets transferred or disposed of in connection with the Companyacquisition of replacement property of substantially equivalent, or better, kind, value, and use;
(vviii) change its present accounting methods or principles, except as provided required by GAAP;
(A) make, change or revoke any material Tax election, (B) settle or compromise any material Tax claim or liability, (C) change any material method of accounting or annual accounting period for Tax purposes, (D) surrender any claim for a refund of a material amount of Taxes or (E) waive or extend the statute of limitations in Section 6.6 hereof, respect of any material amount of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business);
(x) enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vixi) cancel incur or compromise guarantee any debt or claimindebtedness for borrowed money, other than indebtedness under the Existing Credit Agreement, or waive any indebtedness that will be repaid at or release prior to the Closing;
(xii) provide any material right of the Company except loan or advance to any Person, other than advances to employees for business expenses in the Ordinary Course of Business;
(viixiii) enter intocreate, modify assume or terminate permit to exist any labor or collective bargaining agreement orLiens upon any of the Current Assets, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeeexcept for Permitted Liens;
(viiixiv) introduce effect any material change with restructuring, recapitalization, reorganization or complete or partial liquidation or dissolution, or adopt or enter into a plan regarding the foregoing;
(xv) fail to maintain policies of liability, casualty and property insurance of substantially similar coverage as the policies currently carried in respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, orbusiness, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not de minimis changes made in the Ordinary Course of Business;
(xxvi) voluntarily agree to enter into any Contract, understanding collective bargaining agreement or commitment that restrains, restricts, limits or impedes otherwise recognize any union as the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment bargaining representative of any personsemployees;
(xixvii) terminate, amend, restate, supplement revalue any assets or waive write off as uncollectible any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than accounts receivable except write-offs in the Ordinary Course of Business or (B) Permitcharged to applicable reserves which individually and in the aggregate are not material to the business;
(xiixviii) cancel or terminate any material academic program;
(xix) settle or compromise any pending or threatened Legal Proceeding Action resulting in an obligation of the Company or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected Company Subsidiaries to be greater pay more than $50,000250,000; or
(xx) fail to maintain or allow to lapse, any material Educational Approval;
(xiiixxi) change (x) designate any or modify its cash equivalents as cash collateral for letters of credit, collection or payment policies(y) incur any security deposits, procedures or practicesdeposits in trust accounts, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables rent deposits, or other liabilitiessimilar deposits held for the account of the Company or the Company Securities or (z) incur any restricted cash;
(xivxxii) take change, add or remove any line items (including account names or numbers) set forth in Current Assets or Current Liabilities reflected on Exhibit C; or
(xxiii) enter into any agreement to do any action which would adversely affect otherwise prohibited under this Section 7.3(b).
(c) Notwithstanding anything contained in this Agreement to the ability contrary, the Company and the Company Subsidiaries shall be permitted to (i) maintain through the Closing Date the cash management systems and procedures of the parties to consummate Company and the transactions contemplated Company Subsidiaries, as currently conducted by this Agreement;
(xv) amend the operating agreement of Company and the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except Company Subsidiaries and periodically settle intercompany balances consistent with past practices in the Ordinary Course of Business under loan or credit agreements or arrangements up (including through dividends and capital contributions) and (ii) use Cash and Cash Equivalents to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, repay or satisfy Company Debt or any Transaction Expenses or (B) that would make pay any of the representations and warranties accrued bonuses of the Company in this Agreement or any of the Company Documents untrue or incorrect Subsidiaries, in any material respect or could result in any each case prior to the Measurement Time.
(d) Before the Closing Date, the Company shall, subject to the terms and conditions of this Agreement (including this Section 7.3), exercise complete control and supervision over the operations of the conditions to Company and the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyCompany Subsidiaries.
Appears in 1 contract
Sources: Agreement and Plan of Merger (PERDOCEO EDUCATION Corp)
Conduct of the Business Pending the Closing. (a) Except (i) as otherwise expressly provided contemplated by this Agreement Agreement, (ii) as set forth on Schedule 6.2(a), (iii) as Purchaser may consent in writing (which consent shall not be unreasonably withheld, conditioned or with delayed) and (iv) to the prior written consent extent prohibited by applicable Law or the regulations or requirements of Newcoany stock exchange or regulatory organization applicable to the Company, between the date hereof and the ClosingPurchased Companies or their Subsidiaries, the Company shall, and shall cause the Purchased Companies and their Subsidiaries to:
(i) conduct the Business respective businesses of the Company, the Purchased Companies and their Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Company, the Purchased Companies and their Subsidiaries and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Company, the Purchased Companies and suppliers)their Subsidiaries;
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon maintain all of the assets and properties of the Company Company, the Purchased Companies and their Subsidiaries in their current condition, ordinary wear and tear excepted and (B) maintain (to the extent available) insurance upon all of the properties and assets of the Company, the Purchased Companies and their Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Company, the Purchased Companies and their Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting discounting, deferring or accelerating payment of such accounts or Liabilities utilizing all available cash except for such actions taken in the Ordinary Course of Business that individually, and any available line of creditin the aggregate, are not material, and (C) use its commercially reasonable efforts to comply with all contractual and other obligations applicable to the operation of the Company;, the Purchased Companies and their Subsidiaries; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided permitted by this Agreement or with as provided on Schedule 6.2(b), and except to the extent required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, the Purchased Companies or their Subsidiaries, the Company shall not, and shall cause the Purchased Companies and their Subsidiaries not to (without the prior written consent of Newcothe Purchaser, the Company which consent shall not:not be unreasonably withheld, conditioned or delayed):
(i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation distribution in respect of the capital stock of the Company, any of the Purchased Companies or any Subsidiaries, other than dividends or distributions by a wholly-owned subsidiary of a Purchased Company to such Purchased Company (or other than in connection with compliance with Section 6.16), or (B) other than pursuant to existing written Contracts listed on Schedule 6.2(b)(i), repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company, the Purchased Companies and their Subsidiaries;
(ii) transfer, issue, sell or dispose of any director shares of capital stock or Employee other securities of the Company, the Purchased Companies or any of their Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company, the Purchased Companies or any of their Subsidiaries, except that the Company except for normal year-end increases may (A) grant stock options under the Company Stock Plans in the Ordinary Course of Business; (B) issue shares of Company Common Stock pursuant to the ESPP and upon the exercise of options outstanding on the date hereof (or that are granted or issued after the date of this Agreement in compliance with this Agreement) under the Company Stock Plans; and (C) issue shares of Company Common Stock upon the exercise of Warrants or conversion of Convertible Securities;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company, the Purchased Companies or any of their Subsidiaries;
(iv) amend the certificate of incorporation, articles of association, bylaws or other organizational documents of the Company, the Purchased Companies or any of their Subsidiaries;
(v) (A) increase the annual level of compensation (including equity compensation, whether payable in cash, stock or other property) of any employee, director or consultant of the Company, the Purchased Companies or any of their Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Company, the Purchased Companies or any of their Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employmentemployment (other than to the extent providing for “at-will” employment and without severance), deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Company, the Purchased Companies or any of their Subsidiaries is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company, the Purchased Companies or any of their Subsidiaries in his or her capacity as a director, officer or employee of the Company, the Purchased Companies or any of their Subsidiaries; provided, however, that notwithstanding the foregoing, the Company may amend the Company Stock Plans to accelerate the vesting of options issued under the Company Stock Plans in connection with the Transaction;
(iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness for trade payables incurred in the Ordinary Course of Business since and amounts outstanding under existing credit facilities as of the Balance Sheet Datedate of this Agreement, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (zcontingent or otherwise) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; provided that the Purchased Companies and their Subsidiaries may borrow or draw down under existing credit facilities so long as the aggregate principal amount outstanding thereunder as of the Effective Time does not exceed the amount outstanding thereunder as of the date of this Agreement;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedExceptions and leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company, the Purchased AssetsCompanies or any of their Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company, the Purchased Assets (Companies and their Subsidiaries except for fair consideration sales of products to customers in the Ordinary Course of Business; provided, however, that the Company may sell, transfer or convey its shares of capital stock of Metron Technology (Hong Kong) Limited, Metron Technology (Far East) Limited or Metron Technology (Nordic) AB to one or more Purchased Companies or Subsidiaries selected in consultation with the Purchaser (it being understood that, effective upon such sale, assignment, transfer or conveyance, the entity whose shares have been sold, assigned, transferred or conveyed shall be deemed, for purposes of the this Agreement, to be a “Subsidiary” and not a “Purchased Company;”).
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Company, the Purchased Companies or any of their Subsidiaries except pursuant to existing Contracts listed in the Ordinary Course of BusinessSchedule 6.2(b)(ix);
(viix) enter into any commitment for capital expenditures of the Company, the Purchased Companies and their Subsidiaries in excess of $25,000 for any individual commitment and $250,000 per quarter for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company, the Purchased Companies or any of their Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company, the Purchased Companies or any Employeeof their Subsidiaries;
(viiixii) introduce any material change with respect to the operation of the BusinessCompany, the Purchased Companies or any of their Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, take any action to cause any material change in any contribution of its product or service lines to its revenues or net income, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxiii) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into any transaction or to make or enter into, modify or renew into any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxiv) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xv) enter into any ContractContract or transaction between the Company on one hand and any Purchased Company or their Subsidiaries on the other hand;
(xvi) (A) make or rescind any election relating to Taxes, understanding settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes or (B) except as required by applicable law or GAAP, make any change to any of its Tax or reporting or accounting practices, methods or policies;
(xvii) enter into any contract or agreement or commitment that which restrains, restricts, limits or impedes the ability of the BusinessCompany, the Purchased Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea;
(xixviii) terminatechange its fiscal year, amendrevalue any of its assets or except as required under GAAP or applicable Law, restatemake any changes in financial accounting methods, supplement principles or waive practices except as required by GAAP or by a Governmental Body and as concurred to by the Company’s independent public accountants;
(xix) commence or settle any rights under Legal Proceeding;
(xx) enter into any (A) Contract that if in effect as of the date hereof would be a Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability Contracts of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts type set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSchedule 6.2(b)(xx); or
(xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could reasonably be expected to result in any of the conditions to the Closing condition set forth in Section 7.2(a) not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companysatisfied.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Segal Edward D)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoBuyer, Seller covenants and agrees that, between the date hereof and the ClosingClosing Date, Seller shall operate the Company Business in the ordinary course in a manner consistent with past practice, and shall confer with Buyer and its representatives, as reasonably requested, to report on operational matters and the general status of ongoing operations. Notwithstanding the generality of the foregoing, Seller shall, between the date hereof and the Closing Date, except as otherwise expressly required by this Agreement or by Applicable Laws or except with the prior written consent of Buyer, not to be unreasonably withheld or delayed:
(i) conduct the Business only in the Ordinary Course of Businesspay all non-terminated Seller employees consistent with ordinary course and past practice;
(ii) use its commercially reasonable efforts to conduct the Business in compliance with all Applicable Laws (A) preserve except for those Laws whose effect is waived or suspended by the present business operations, organization (including officers and Employees) and goodwill application of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliersBankruptcy Code);
(iii) maintain (A) all of the assets use commercially reasonable efforts to preserve Seller’s relationships with its current equity holders, customers, distributors, suppliers, vendors and properties of, or used by, the Company consistent others having business dealings with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this AgreementSeller;
(iv) (A) maintain the booksits physical assets, accounts properties and records Facilities in their current working order, condition and repair as of the Company in the Ordinary Course of Businessdate hereof, (B) continue to collect accounts receivable ordinary wear and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Companytear excepted;
(v) comply with not take any action, or omit to take any action, the capital expenditure plan intent of which is to cause the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plantermination of its current officers or key employees;
(vi) comply in perform all material respects with all applicable Lawsobligations required to be performed by Seller under the Assumed Contracts;
(vii) take steps to renew all Permits b▇▇▇ for products sold or services rendered and pay accounts payable in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or consistent with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeepast practice;
(viii) introduce not encumber nor enter into any material change with respect to new leases, licenses or other use or occupancy agreements for the operation of the Business, including Real Property or any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productspart thereof;
(ix) enter into any transaction grant Buyer reasonable access to Seller’s customers, distributors, landlords, suppliers and vendors and cooperate with Buyer in communicating with such Persons, provided that the Company shall have the opportunity to have a representative of the Company present (in person or enter intoby telephone, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businessas applicable);
(x) enter into not (a) create any Contractadditional Seller Benefit Plan, understanding (b) modify or commitment that restrainschange any existing Seller Benefit Plan, restricts(c) establish or increase any compensation or benefits payable or to become payable to any employee, limits consultant, director or impedes the ability other service provider of the BusinessCompany or its Affiliates; (d) hire, engage or terminate any employee, consultant, director or other service provider; or (e) establish, adopt, enter into, amend or terminate any Seller Benefit Plan. For the ability avoidance of Newco doubt, Seller shall not pay any bonuses or Purchaserincentive plan payments to any Person without the consent of Buyer and approval of the Court, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsas required;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than maintain all insurance policies in full force and effect through the Ordinary Course close of Business or (B) Permitbusiness on the Closing Date;
(xii) refrain from instituting, settling or agreeing to settle or compromise any pending or threatened Legal Proceeding or material proceeding before any claim or claims forGovernmental Entity relating to the Assets, or modify in any manner that would result in is adverse to the Business or the Assets, rescind or terminate a loss of revenue of, an amount that could, individually Permit (or in application therefor) relating to the aggregate, reasonably be expected to be greater than $50,000Assets;
(xiii) change refrain from modifying any existing rights under, or modify its creditenter into any settlement regarding the breach, collection infringement, misappropriation or payment policiesdilution of, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;any material Intellectual Property; and
(xiv) take not enter into any action which would adversely affect the ability of the parties agreement with any labor union or labor organization, including but not limited to consummate the transactions contemplated any collective bargaining agreement, except as required by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyLaw.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closing, the Company shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(viivi) take steps to renew all Permits in a timely manner prior to their lapse; and
(viiivii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) except for the DIP Loans, (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, ; or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, or permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except Company, other than those contemplated in the Ordinary Course Company’s plan of Businessreorganization;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of BusinessContract;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business License or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000, other than those contemplated in the Company’s plan of reorganization;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this From the Agreement or Date until the Closing, except with the prior written consent of Newco, between the date hereof and the ClosingBuyer or as otherwise expressly permitted or required by this Agreement, the Shareholder shall cause the Company shallto:
(i) conduct carry on its business in substantially the Business only in same manner as it has heretofore and not introduce any new method of management, operation or accounting (except as required by GAAP or any applicable law or Order and except for actions taken to file PPP Applications to facilitate the Ordinary Course forgiveness of Businessthe PPP Loans);
(ii) comply with the terms and conditions of, and not cancel, its present insurance policies;
(iii) use its commercially reasonable efforts to (A) maintain and preserve the present its business operationsorganization intact, organization (including officers and Employees) and goodwill of the Company and (B) preserve retain the services of its present relationships with Persons having employees and (C) not hire any additional employees except for hires in the ordinary course of business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementpractices;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual applicable laws and other obligations provide notice to Buyer of the Company;any governmental inquiry, notice or investigation; and
(v) comply with maintain the capital expenditure plan of the Company for 2009 set forth instruments and agreements governing its outstanding Indebtedness and leases on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts their present terms and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss not incur new Indebtedness or impairment of all Intellectual Property of the Companyenter into new lease instruments or agreements.
(b) Without limiting From the generality of Agreement Date until the foregoingClosing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newcothe Buyer or as otherwise expressly permitted or required by this Agreement, the Shareholder shall ensure that neither the Shareholder nor the Company shall notwill:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companychange in its Charter Documents;
(ii) (A) create, incur, assume, guarantee, endorse issue any additional Equity Interests or issue or otherwise become liable create any options, warrants or responsible with respect rights to (whether directly, contingently or otherwise) acquire any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits Equity Interests;
(iii) subject increase or agree to increase the compensation payable to the Shareholder, member of the board of directors or any Lien officers, directors, managers, consultants or otherwise encumber or, employees except for Permitted Exceptionsincreases in the ordinary course consistent with past practice, permitother than to the Shareholder; provided, allow or suffer however, that the Company may distribute sufficient cash to be subjected permit the Shareholder to any Lien or otherwise encumbered, any pay his 2020 and 2021 federal and state income taxes on the taxable income attributable to him based on the highest combined marginal rate of taxation at the Purchased Assets;time of such distribution.
(iv) acquire make any material properties investments (other than short-term certificates of deposit of a commercial bank or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration trust company) in the Ordinary Course of Business) of the Company;
Equity Interests (v) except as provided in Section 6.6 hereofor options, enter into warrants or agree rights to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities Equity Interests) or Indebtedness of any Person;
(viv) cancel or compromise enter into any debt or claimcontract to incur, or waive otherwise agree to incur any liability or release make any material right capital payment or expenditure of any kind in excess of $50,000.00, other than in the ordinary course of its business and consistent with its past practice (it being agreed that the foregoing restriction shall not prohibit or limit the ability of any of the Company except to enter into contractual obligations or otherwise incur liabilities in respect of any existing projects pursuant to the terms and conditions of this Agreement);
(vi) prepay any Indebtedness other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, or (B) create, assume or permit to be created or imposed any liens or encumbrances, upon any of its assets or properties, whether now owned or hereafter acquired other than in the ordinary course of business consistent with past practice;
(vii) enter intoexcept as required by any applicable law or Order, modify (A) adopt, establish, amend or terminate any labor of its Employee Benefit Plans, or collective bargaining agreement orany other compensation plans or employee policies and procedures or (B) take any discretionary action, through negotiation or otherwiseomit to take any contractually required action, make if that action or omission could either (y) deplete the assets of any commitment of its Employee Benefit Plans, or incur (z) increase the liabilities or obligations under any Liability to any labor organization with respect to any Employeesuch plan;
(viii) introduce sell, assign, lease or otherwise transfer or dispose of any material change with respect to the operation of the Business, including any material change in the types, nature, composition its owned or quality of products leased property or services, or, equipment other than in the Ordinary Course ordinary course of Businessits business and consistent with its past practice, make any change in product specifications or prices to dispose of excess or terms of distributions of such productsobsolete inventory or equipment other than for appropriate value;
(ix) enter into negotiate for the acquisition of any transaction business or enter into, modify entity or renew the start-up of any Contract which by reason new line of its size or otherwise is not in the Ordinary Course of Businessbusiness;
(x) enter into waive any Contractof its rights or claims, understanding or commitment provided that restrains, restricts, limits or impedes it may negotiate and adjust bills and Accounts Receivables in the ability course of the Business, or the ability of Newco or Purchaser, to compete good faith disputes with or conduct any business or line of business customers in any geographic area or solicit the employment of any personsa manner consistent with past practice;
(xi) terminate, amend, restate, supplement or waive effect any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than transaction that is not in the Ordinary Course ordinary course of Business its business and consistent with its past practice or (B) Permit;that is prohibited hereby; or
(xii) settle amend or compromise terminate any pending contract or threatened Legal Proceeding or any claim or claims for, or agreement to which it is a party that would result in a loss of revenue of, an amount that could, individually or is not in the aggregate, reasonably be expected to be greater than $50,000;ordinary course of its business.
(xiiic) change or modify its creditFrom the Agreement Date until the Closing, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect except with the ability prior written consent of the parties to consummate the transactions contemplated Buyer or as otherwise expressly permitted or required by this Agreement;
(xv) amend , the operating agreement of Shareholder shall not make or revoke any tax election respecting the Company that affects the Company;
(xvi) agree to materially increase Liabilities from , the amounts set forth on Buyer or the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyShares.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Transportation & Logistics Systems, Inc.)
Conduct of the Business Pending the Closing. Subject to any obligations as a debtor in possession under the Bankruptcy Code and except as (ai) Except otherwise expressly contemplated by this Agreement or pursuant to the written consent of Purchaser, (ii) described on Schedule 6.3 attached hereto, or (iii) explicitly permitted pursuant to the debtor-in-possession credit facility between the Senior Lender and Sellers, from the date hereof until the Closing Date, Sellers shall (i) conduct the Business in the Ordinary Course of Business (including with respect to the payment of accounts payable to the fullest extent permissible under the Bankruptcy Code), (ii) use commercially reasonable efforts to preserve intact the Business, to keep available the services of the present employees of the Business and, (iii) not take any action inconsistent with this Agreement or with the consummation of the Closing. Without limiting the generality of the foregoing, subject to any obligations as a debtor in possession under the Bankruptcy Code and except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoPurchaser or except as described on Schedule 6.3 attached hereto, between from the date hereof and until the ClosingClosing Date, the Company each Seller shall:
(ia) conduct not sell, assign, transfer, convey, pledge, mortgage, lease, license or otherwise dispose of or encumber any of the Acquired Assets, or any interests therein, other than in the Ordinary Course of Business only and consistent with past practice;
(b) not make any material change in its methods of management, marketing, accounting or operating (or practices relating to payments);
(c) report periodically to Purchaser concerning the status of the Business, the Acquired Assets and its operations and finances;
(d) not take any action which is inconsistent with its obligations under this Agreement;
(e) maintain the Acquired Assets in good operating condition and repair, subject to ordinary wear and tear;
(f) continue all of its existing policies of insurance (or comparable insurance) in full force and effect and at least at such levels as are in effect on the date hereof, up to and including the Closing (and not cancel any such insurance or take, or fail to take, any action that would enable the insurers under such policies to avoid liability for claims arising out of occurrences prior to the Closing);
(g) not enter into any transaction or make or enter into any contract or commitment or amend any material contract or commitment which is not in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice;
(h) not grant any increase in the compensation payable or to become payable to any employee (including, and without limitation, retention or stay bonus arrangements), except such increases as are required by contract or pursuant to the Retention Plan;
(Bi) insurance upon all not contribute or make any commitment to, or representation that it shall, contribute any amounts to any Employee Benefit Plan of Sellers, or otherwise alter any such Employee Benefit Plan of Sellers or the assets and properties funding thereof except as required by law or by the terms of the Company in any such amounts and of such kinds comparable to that plan as in effect on the date of this Agreement;
(iv) (Aj) maintain the books, accounts Books and records of the Company Records in the Ordinary Course of Businessusual, (B) continue to collect accounts receivable regular and pay accounts payable ordinary manner and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply consistent with all contractual and other obligations of the Companypast practice;
(vk) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects maintain compliance with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance laws, rules and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment Regulations of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoingfederal, except as otherwise expressly provided by this Agreement state, local or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary foreign governmental or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect regulatory bodies that relate to the units or other equity interests of Business and the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Acquired Assets;
(ivl) acquire not implement any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of employee layoffs that could implicate the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the CompanyWARN Act;
(vm) except as provided in Section 6.6 hereof, enter into apply or agree to enter into continue prosecution of applications already submitted for any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution toPermits required under Environmental Laws, or otherwise acquire under any other Regulation, for the securities continued operation of any Personthe Business (as it is currently being operated) up to and after Closing;
(vin) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or not incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the BusinessLiability, including any material change in the typeswhether absolute, naturefixed or contingent, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; orconsistent with past practice;
(xviio) not sell, transfer, license or otherwise dispose of, or agree to do anything sell, transfer, license or otherwise dispose of, or permit to lapse any of the Intellectual Property; and
(Ap) prohibited by this Section 6.2not terminate, discontinue, close or dispose of any plant, Leased Facility or business operation of Sellers. Sellers will not (Bi) take or agree or commit to take any action that would make any representation and warranty of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect Sellers hereunder inaccurate in any material respect at, or could result as of any time prior to, the Closing Date or (ii) omit or agree to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with material respect to the Companyat any such time.
Appears in 1 contract
Sources: Asset Purchase Agreement (Childtime Learning Centers Inc)
Conduct of the Business Pending the Closing. (a) Except 7.2.1. From and after the date hereof and until the Closing Date, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closingwhich shall not be unreasonably withheld, the Company Seller shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) 7.2.1.1. use its commercially their reasonable commercial efforts to (A) preserve the present business Business operations, organization (including officers and all Employees) and goodwill of the Company Business and (B) preserve the present relationships with Persons having business dealings with Seller in the Company (conduct of, or relating to, the Business, including customers and suppliers);
(iii) 7.2.1.2. maintain (A) all of the assets Purchased Assets in their current condition, ordinary wear and properties of, or used by, the Company consistent with past practice, tear excepted and (B) insurance upon all of the assets and properties of the Company Purchased Assets in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) 7.2.1.3. (A) maintain the books, accounts and records of Seller relating to the Company Business in the Ordinary Course ordinary course of Businessbusiness, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet and Taxes consistent with past practice in the Ordinary Course of Business Business, utilizing normal procedures and without materially discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all material contractual and other obligations applicable to the operation of the CompanyBusiness, including those included in the Purchased Contracts;
(v) comply with 7.2.1.4. maintain all Permits relating to the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures Business in the amounts full force and at the times set forth in such planeffect;
(vi) comply in all 7.2.1.5. provide Purchaser with prompt notice of any material respects damage, destruction or loss, whether or not covered by insurance, with all applicable Lawsrespect to the Purchased Assets or any other event that could reasonably be expected to have a Material Adverse Effect;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) 7.2.1.6. pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Transferred Intellectual Property Property;
7.2.1.7. comply in all material respects with all applicable Laws; and consult with Purchaser regarding all material terms including financial terms of all negotiations with customers of the CompanyBusiness for the supply of goods or services or in preparation of responses to RFP’s or bids for tenders in connection with the Business, it being clarified that Purchaser shall have no veto rights with respect thereto, however, Purchaser shall have no obligation to assume any proposal that was not so approved by Purchaser;
7.2.1.8. not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, except 7.2.2. Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, the Company which shall not be unreasonably withheld, Seller shall not:
(i) 7.2.2.1. hire any new employee to serve in the Business or, except as required under this Agreement, terminate any Employee, or, except as may be required pursuant to any applicable Law, (A) increase the salary or other level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement Employee Plan made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company Employees or otherwise modify or amend or terminate any such plan Employee Plan, , or arrangement (DC) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition consulting or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Seller is a party; party or (E) pay involving Employee in his or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyher capacity as an Employee;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) 7.2.2.2. subject the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject Purchased Assets to any Lien or otherwise encumber or, except for Permitted Exceptions, or permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased AssetsAssets (whether tangible or intangible), except under any applicable Law;
(iv) 7.2.2.3. acquire any material properties or assets in connection with the Business or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, 7.2.2.4. enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother entity;
(vi) 7.2.2.5. cancel or compromise any debt or claim, claim or waive or release any material right of Seller in respect of the Company except Purchased Assets;
7.2.2.6. enter into any commitment for capital expenditures relating to the Business in excess of $1,000 for any individual commitment and $5,000 for all commitments in the Ordinary Course of Businessaggregate;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, 7.2.2.7. make any commitment or incur expenditures in excess of $1,000 for any Liability individual expenditure and $10,000 for all expenditures in the aggregate, provided however, that Seller shall be allowed to any labor organization make the following expenditures which shall not be counted towards the abovementioned caps:payment of monthly rent in accordance with respect to any EmployeeSeller’s currently in force lease agreement, and payment of municipality property tax (‘Arnona’) and utilities fess (i.e., electricity, water, telephone and internet);
(viii) 7.2.2.8. introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, or make any material change in product specifications or prices or terms of distributions of such products;
(ix) 7.2.2.9. enter into any transaction relating to the Business which is not in the ordinary course of business or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of BusinessPurchased Contract;
(x) 7.2.2.10. enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate7.2.2.11. Terminate, materially amend, restate, supplement or waive any material rights under any (A) Material Contract, Real Property Lease, Personal Property Lease Contract or Purchased Intellectual Property License, other than in the Ordinary Course of Business License or (B) Permit;
(xii) 7.2.2.12. make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, enter into any closing agreement, settle or compromise any pending or threatened Legal Proceeding or any claim or claims forassessment in respect of Taxes, or that would result in a loss of revenue of, an amount that could, individually consent to any extension or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability waiver of the parties limitation period applicable to consummate any claim or assessment in respect of Taxes, in each case related primarily to the transactions contemplated by this Agreement;
(xv) amend Business, the operating agreement Purchased Assets or the Assumed Liabilities, except, in each case, with respect to any of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up foregoing that relates to the maximum amounts and other terms as Taxes payable in connection with this transaction, provided that, Purchaser shall not unreasonably withhold its consent to the making or changing of such election if such election could not have a material adverse effect on the date of this AgreementSeller and/or the Purchaser; or
(xvii) or 7.2.2.13. agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.7.2.2
Appears in 1 contract
Sources: Asset Purchase Agreement (Ectel LTD)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or consented to by Purchaser in writing, from the date of this Agreement until the Closing Date, Seller shall operate the Business in the Ordinary Course of Business consistent with past practices and use reasonable best efforts to maintain and preserve intact its current Business organization, operations and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having relationships with the prior written consent of NewcoBusiness. Without limiting the foregoing, between from the date hereof and until the ClosingClosing Date, the Company Seller shall:
(i) preserve and maintain all Permits required for the conduct of the Business only in as currently conducted or the Ordinary Course ownership and use of Businessthe Assets;
(ii) use its commercially reasonable efforts to (A) preserve pay the present business operationsdebts, organization (including officers Taxes and Employees) and goodwill other obligations of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Business when due;
(iii) maintain (A) all of the assets and properties of, or used by, the Company continue to collect Accounts Receivable in a manner consistent with past practice, and without discounting such Accounts Receivable;
(Biv) insurance upon all of maintain the assets and properties of Assets in the Company in such amounts and of such kinds comparable to that in effect same condition as they were on the date of this Agreement;
(iv) (A) maintain the books, accounts subject to reasonable wear and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Companytear;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)continue in full force and effect without modification all insurance policies, including making such capital expenditures in the amounts and at the times set forth in such planexcept as required by applicable Law;
(vi) defend and protect the properties and assets included in the Assets from infringement or usurpation;
(vii) perform all of its obligations under all Contracts;
(viii) maintain the books and records in accordance with past practice;
(ix) comply in all material respects with all Laws applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapsethe conduct of the Business or the ownership and use of the Assets; and
(viiix) pay all maintenance and similar fees and not take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property permit any action that would cause any of the Companychanges, events or conditions described in Section 3.7 to occur.
(b) Without limiting From the generality of date hereof until the foregoingClosing Date, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Seller shall notpromptly notify Purchaser in writing of:
(i) any fact, circumstance, event or action the existence, occurrence or taking of which (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, forhas had, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) could reasonably be expected to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that couldhave, individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Seller hereunder not being true and correct or (C) has resulted in, or could reasonably be greater than $50,000expected to result in, the failure of any of the conditions set forth in Section 6.1 to be satisfied;
(xiiiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables any notice or other liabilities;
(xiv) take communication from any action which would adversely affect Person alleging that the ability consent of the parties to consummate such Person is or may be required in connection with the transactions contemplated by this Agreement;
(xviii) amend any notice or other communication from any Governmental Authority in connection with the operating agreement of the Company;transactions contemplated by this Agreement; and
(xviiv) agree any Actions commenced or, to materially increase Seller’s Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the Assets or the Assumed Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect that, if pending on the date of this Agreement; or
(xvii) agree , would have been required to do anything (A) prohibited have been disclosed or that relates to the consummation of the transactions contemplated by this Agreement. Purchaser’s receipt of information pursuant to this Section 6.25.1 shall not operate as a waiver or otherwise affect any representation, (B) that would make any of the representations and warranties of the Company warranty or agreement given or made by Seller in this Agreement and shall not be deemed to amend or any of supplement the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanySchedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (Precision Optics Corporation, Inc.)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth on Schedule 5.2(a), (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement or, in the case of the Company, the Stock Purchase Agreement or the Company Stockholders Agreement or, in the case of Buyer, the Common Stock Purchase Agreements, or (z) with the prior written consent of Newcothe other (which consent shall not be unreasonably withheld, between the date hereof conditioned or delayed), each of Buyer and the Closing, the Company shall:
, and shall cause each of its Subsidiaries to, (i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet or in the Ordinary Course ordinary course of Business utilizing normal procedures business consistent with past practice in Buyer’s case; (ii) use commercially reasonable efforts to preserve substantially intact its corporate existence and without discounting business organization; (iii) use commercially reasonable efforts to preserve the goodwill and present business relationships (contractual or accelerating payment of such accounts or Liabilities utilizing all available cash otherwise) with material franchisees, suppliers, licensors, distributors and any available line of credit, others having material business relationships with it; and (Civ) comply with all contractual use commercially reasonable efforts to keep available the services of its current officers and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companyemployees.
(b) Without limiting the generality of the foregoingforegoing Section 5.2(a), except (w) as set forth on Schedule 5.2(b), (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement, the Stock Purchase Agreement or the Company Stockholders Agreement or (z) with the prior written consent of NewcoBuyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to:
(i) (A) increase the salary authorize or other compensation of reserve for issuance, issue or sell any director or Employee shares of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit Company’s or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units its Subsidiaries’ capital stock or other equity interests of the Companysecurities;
(ii) authorize or reserve for issuance, issue or sell any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of the Company’s or any of its Subsidiaries’ capital stock or other equity securities;
(iii) effect any recapitalization, reclassification, stock dividend, stock split or like change in the capitalization of the Company or any of its Subsidiaries;
(iv) declare, set aside or make any payment or distribution of property (or cash) with respect to any security of the Company or its Subsidiaries or purchase, redeem or otherwise acquire any securities of the Company or its Subsidiaries (including any warrants, options or other rights to acquire any securities);
(v) amend in any material respect the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of its Subsidiaries, except (A) create, incur, assume, guarantee, endorse to increase the number of authorized shares of capital stock of the Company so to permit the Levy Subscription and (B) to effect the intent of the last sentence of Section 7.1(a) of the Company Stockholders Agreement;
(vi) subject to any Lien any of the properties or otherwise become liable or responsible with respect to assets (whether directlytangible or intangible) of the Company or any of its Subsidiaries, contingently or otherwise) any Indebtedness except (uA) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personfor Permitted Exceptions;
(iiivii) subject become legally committed to make any Lien or otherwise encumber orcapital expenditures, except for Permitted Exceptions, permit, allow (A) capital expenditures pursuant to projects for which work has already been commenced or suffer committed and is contemplated in the capital expenditure budget provided to be subjected Buyer or (B) capital expenditures related to any Lien Emergency or otherwise encumbered, any of the Purchased AssetsForce Majeure;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities or a substantial portion of the assets of any Person;
(viix) cancel incur or compromise assume any debt Indebtedness in excess of $750,000 or claimguarantee any such Indebtedness, other than in the Ordinary Course of Business or waive pursuant to the Credit Agreement;
(x) loan or release advance any funds to any Person such that the amount of principal of loan advances owed by such Person shall be in excess of $50,000;
(xi) sell, assign, license, transfer, convey or lease or otherwise dispose of any material right properties or assets of the Company or any of its Subsidiaries except in the Ordinary Course of Business;
(viixii) enter intomake or rescind any material election relating to Taxes, modify settle or terminate compromise any labor or collective bargaining agreement material Proceeding relating to Taxes, or, through negotiation or otherwiseexcept as required by applicable Law, make any commitment or incur any Liability material change to any labor organization of its methods of Tax accounting;
(xiii) make any material change to the terms of the Company’s or any of its Subsidiaries’ policies or procedures with respect to its relationships with any EmployeeCompany Franchisees, including (A) any material change to the terms of policies relating to franchisee rent, royalty, or advertising funds, or (B) any material modification to any existing program or plan providing any franchisee incentives or franchisee economic assistance;
(viiixiv) introduce discharge or satisfy any material change with respect to the operation of the Business, including Lien or pay any material change in the types, nature, composition obligation or quality of products or services, orliability, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxv) enter into delay, postpone or cancel the payment of accounts payable, the purchase of inventory, or the replacement of inoperable, worn-out or obsolete assets with assets of comparable quality, in each case in any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not material respect other than in the Ordinary Course of Business;
(xxvi) enter into sell, assign, transfer, lease, license, permit to lapse, fail to maintain or abandon any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability material real property interest of the BusinessCompany or its Subsidiaries, or take any action that could reasonably be expected to cause the ability of Newco loss, lapse or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment abandonment of any personsmaterial real property interest of the Company or its Subsidiaries;
(xixvii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business Business, take or fail to take any action that could reasonably be expected to cause the loss, lapse or abandonment of any material Company Intellectual Property;
(xviii) form any Subsidiary or make a material investment in any other entity (other than the Company or a Subsidiary of the Company);
(xix) terminate or cancel, or amend or modify in any material adverse respect any material insurance policy of the Company or any of its Subsidiaries which is not replaced by a comparable amount of insurance with premiums at a comparable price;
(xx) cancel or waive any right or claim (or series of related rights and claims) either involving more than $1,000,000 or outside the Ordinary Course of Business;
(xxi) terminate, materially modify or cancel any Material Contract, or any Leased Real Property Lease, Company Leased Real Property Lease, Licensed Intellectual Property Contract, Company Benefit Plan, Company Employee Agreement or Company Specified Agreement that meets any of the descriptions set forth in clauses (i) through (xii) of the definition of “Material Contract” in Section 3.13(a), or enter into any Material Contract or any such Leased Real Property Lease, Company Leased Real Property Lease, Licensed Intellectual Property Contract, Company Benefit Plan, Company Employee Agreement or Company Specified Agreement outside the Ordinary Course of Business, except in the case of a Company Benefit Plan as required by Law; or
(xxii) authorize, or commit or agree to do, anything prohibited by this Section 5.2(b).
(c) Without limiting the generality of the foregoing Section 5.2(a), except (w) as set forth on Schedule 5.2(c), (x) as required by applicable Law, (y) as otherwise contemplated by this Agreement or the Common Stock Purchase Agreements or (z) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall not, and shall not permit any of its Subsidiaries to:
(i) authorize or reserve for issuance, issue or sell any shares of Buyer’s or any of its Subsidiaries’ capital stock or other equity securities;
(ii) authorize or reserve for issuance, issue or sell any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of Buyer’s or any of its Subsidiaries’ capital stock or other equity securities;
(iii) effect any recapitalization, reclassification, stock dividend, stock split or like change in the capitalization of Buyer or any of its Subsidiaries;
(iv) declare, set aside or make any payment or distribution of property (or cash) with respect to any security of Buyer or its Subsidiaries or purchase, redeem or otherwise acquire any securities of Buyer or its Subsidiaries (including any warrants, options or other rights to acquire any securities);
(v) amend the certificate of incorporation or by-laws or comparable organizational documents of Buyer or any of its Subsidiaries;
(vi) (A) other than in the ordinary course of business consistent with past practice or as contemplated by an existing Buyer Benefit Plan or Buyer Employee Agreement, agreement, policy or arrangement (including any collective bargaining agreement) increase the compensation or benefits of any employee, (B) materially increase the annual level of compensation of any executive officer of Buyer, (C) modify or amend any Buyer Benefit Plan or Buyer Employee Agreement in any manner that materially increases the amount of the liability attributable to Buyer or any of its Subsidiaries in respect of such Buyer Benefit Plan or Buyer Employee Agreement, (D) enter into, adopt, terminate, establish or materially modify or amend any Buyer Benefit Plans, except as required by Law, or (E) accelerate the vesting or payment of any compensation or benefits under any Buyer Benefit Plan (other than as required under any Buyer Benefit Plan or this Agreement);
(vii) subject to any Lien any of the properties or assets (whether tangible or intangible) of Buyer or any of its Subsidiaries, except (A) in the ordinary course of business consistent with past practice or (B) Permitfor Permitted Exceptions;
(viii) become legally committed to make any capital expenditures;
(ix) enter into any merger or consolidation with any Person, or acquire the securities or a substantial portion of the assets of any Person;
(x) incur or assume any Indebtedness or guarantee any Indebtedness other than to fund Approved Transaction Expenses;
(xi) loan or advance any funds to any Person;
(xii) settle sell, assign, license, transfer, convey or compromise lease or otherwise dispose of any pending material properties or threatened Legal Proceeding assets of Buyer or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or its Subsidiaries except in the aggregate, reasonably be expected to be greater than $50,000ordinary course of business consistent with past practice;
(xiii) make or rescind any material election relating to Taxes, settle or compromise any material Proceeding relating to Taxes, or, except as required by applicable Law, make any material change or modify to any of its credit, collection or payment policies, procedures or practices, including acceleration methods of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesTax accounting;
(xiv) take discharge or satisfy any action which would adversely affect material Lien or pay any material obligation or liability, other than in the ability ordinary course of the parties to consummate the transactions contemplated by this Agreementbusiness consistent with past practice;
(xv) amend delay, postpone or cancel the operating agreement payment of accounts payable in any material respect other than in the Companyordinary course of business consistent with past practice;
(xvi) agree sell, assign, transfer, lease, license, permit to lapse, fail to maintain or abandon any material real property interest of Buyer or its Subsidiaries, or take any action that could reasonably be expected to cause the loss, lapse or abandonment of any material real property interest of Buyer or its Subsidiaries;
(xvii) take or fail to take any action that could reasonably be expected to cause the loss, lapse or abandonment of any patents, patent applications, trademarks, service marks, copyright registrations or applications for registration, in each case, that are owned by Buyer or any of its Subsidiaries and material to their business as currently conducted;
(xviii) form any Subsidiary or make a material investment in any other entity (other than Buyer or a Subsidiary of Buyer);
(xix) terminate or cancel, or amend or modify in any material adverse respect any material insurance policy of Buyer or any of its Subsidiaries which is not replaced by a comparable amount of insurance with premiums at a comparable price;
(xx) cancel or waive any right or claim (or series of related rights and claims) outside the ordinary course of business consistent with past practice;
(xxi) terminate, materially increase Liabilities modify or cancel any material Contract, or enter into any material Contract outside the ordinary course of business consistent with past practice;
(xxii) initiate, compromise or settle any Proceeding;
(xxiii) use any portion of the Trust Account to acquire any shares of Buyer’s or any of its Subsidiaries’ capital stock or other equity securities, other than acquisitions of shares of Buyer Common Stock from the amounts set forth on the Balance Sheet except holders of Buyer Common Stock who properly exercise their redemption rights in the Ordinary Course accordance with Buyer’s certificate of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementincorporation; or
(xviixxiv) authorize, or commit or agree to do do, anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company5.2(c).
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closing, Seller shall, and Seller shall cause the Company shallGroup Companies to:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the other Group Companies and (B) preserve the present relationships with Persons having business dealings with the Company and the other Group Companies (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceand the other Group Companies in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the assets and properties of of, or used by, the Company and the other Group Companies in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company and the other Group Companies in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the CompanyCompany and the other Group Companies;
(v) comply with the capital expenditure plan of the Company and the other Group Companies for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2007, including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;; and
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all filing, maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of owned by or licensed to the CompanyCompany and the other Group Companies.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, Seller (with respect to Subsection (iii) hereof and solely with respect to the Company Business) shall not, and Seller shall not permit the Group Companies to:
(i) except as may be required by the terms of any employment or consulting arrangement referred to in the Disclosure Schedule and furnished to Purchaser, (A) increase the salary or other compensation of any director or Employee employee of the Company except for normal year-end increases in or any of the Ordinary Course of Businessother Group Companies, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or any of the other Group Companies or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company or any of the other Group Companies (or amend any such agreement) to which the Company or any of the other Group Companies is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Indebtedness; (Ba) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the CompanyCompany or any of the other Group Companies; (Cb) materially modify the terms of any Indebtedness or other Liability; or (Dc) make any loans, advances of capital contributions to, or investments in, any other PersonPerson (other than to the Subsidiaries in the Ordinary Course of Business);
(iii) (a) make, change or revoke any material Tax election, settle or compromise any material Tax claim or liability or enter into a settlement or compromise, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes, or (b) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and the Company shall have provided Purchaser a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for Purchaser to review and approve (such approval not to be unreasonably withheld, conditioned or delayed);
(iv) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company or any of the other Group Companies;
(ivv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets, whether tangible or intangible (except for fair consideration in the Ordinary Course of Business) of the CompanyCompany and the other Group Companies;
(vvi) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vivii) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or interests in, the Company or any of the other Group Companies;
(viii) cancel or compromise any debt or claim, claim or waive or release any material right of the Company or any of the other Group Companies except in the Ordinary Course of Business;
(viiix) enter into any commitment for capital expenditures in excess of $15,000 for any individual commitment and $75,000 for all commitments in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viiixi) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ixxii) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(xxiii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco the Company or Purchaserany of the other Group Companies, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixiv) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xiixv) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiiixvi) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xivxvii) take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xvxviii) amend the limited liability company operating agreement or comparable organization document of the any Group Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixix) agree to do anything (A) prohibited by this Section 6.27.2, (B) that which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffect.
Appears in 1 contract
Sources: LLC Membership Interest Purchase Agreement (Fushi International Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.2,(ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), between the date hereof and the Closing, the Company Sellers shall:
(i) conduct the Business only in the Ordinary Course of BusinessBusiness and in compliance with applicable Law;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and Business, (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);suppliers of the Business, and (C) maintain its insurance policies with respect to the Business and the Purchased Assets; and
(iii) maintain act in accordance with the Bankruptcy Court's compensation order attached hereto as Exhibit I. ---------
(Ab) all Except (i) as set forth on Schedule 7.2, (ii) as required by ------------- applicable Law, (iii) as otherwise contemplated by this Agreement or (iv) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed with respect to subsections (i), (iv) and (xii) below), Sellers shall not, solely as it relates to the assets and properties ofBusiness:
(i) make or rescind any material election relating to Taxes, settle or compromise any material claim, action, suit, litigation, proceeding, 45 arbitration, investigation, audit or controversy relating to Taxes, or used byexcept as may be required by applicable Law or GAAP, make any material change to any of their methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Company consistent with past practice, and (B) insurance upon all preparation of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementits most recent Tax Returns;
(ivii) (A) maintain the books, accounts and records subject any of the Company in Purchased Assets to any Lien outside of the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets that would be Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Assets;
(except for fair consideration iv) make any material change, whether written or oral, to any Material Contract with any of the suppliers or customers/licensees of Sellers;
(v) delay payment of any accrued expense, trade payable or other liability of Sellers beyond its due date or the date when such liability would have been paid in the Ordinary Course of Business) Business other than in respect of the Companyany cash expense, trade payable or liability being contested by Sellers in good faith;
(vvi) except as provided allow Sellers' Inventory to vary in Section 6.6 hereof, any material respect from the levels customarily maintained;
(vii) engage in any one or more material activities or transactions outside the Ordinary Course of Business;
(viii) enter into or agree to enter into any merger or consolidation with with, any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother entity;
(viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company any Seller that constitutes a Purchased Asset except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes for capital expenditures in excess of $500,000 for all commitments in the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsaggregate;
(xi) terminateenter into, amendmodify or terminate any labor or collective bargaining agreement to which Sellers or their Employees are a party, restateor, supplement through negotiation or waive otherwise, make any rights under commitment or incur any liability to any labor organization;
(Axii) Material Contractalter, amend or terminate any existing Real Property Lease, Personal Property Lease or Intellectual Property License, other than enter into any lease or contract affecting any of Sellers' Properties;
(xiii) accelerate collection of any notes or accounts receivable of Sellers in advance of their regular due dates or the dates when they would have been collected in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesBusiness;
(xiv) take enter into any action transaction or make any commitment which would adversely affect the ability likely result in any of the parties to consummate representations, warranties or covenants of Sellers contained in this Agreement not being true and correct after the transactions contemplated by this Agreement;
(xv) amend the operating agreement occurrence of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan such transaction or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementevent; or
(xviixv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.7.2. -----------
Appears in 1 contract
Sources: Asset Purchase Agreement (Agway Inc)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth on Schedule 5.1(a) and Schedule 5.1(b) of the Seller Disclosure Schedule, (x) as required by Applicable Law or any Contract in existence as of the date of this Agreement, (y) as otherwise expressly provided contemplated by this Agreement (including with respect to the Reorganization) or (z) with the prior written consent of NewcoBuyer (which consent will not be unreasonably withheld, between the date hereof delayed or conditioned), Seller will, and the Closing, will cause the Company shall:
to, (i) conduct the Business only in the Ordinary Course of Business;
ordinary course and (ii) use its commercially reasonable efforts to preserve the present (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceBusiness, and (B) insurance upon all relationships with customers and suppliers of the assets Business.
(b) Prior to the Closing, except (w) as set forth on Schedule 5.1(a) and properties Schedule 5.1(b) of the Company Seller Disclosure Schedule, (x) as required by Applicable Law or any Contract in such amounts and existence as of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (By) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided contemplated by this Agreement (including with respect to the Reorganization) or (z) with the prior written consent of NewcoBuyer (which consent will not be unreasonably withheld, delayed or conditioned), Seller will not, and will not permit the Company shall notto:
(i) other than in the ordinary course consistent with past practices, as required by any Benefit Plan or in connection with a promotion or offer of employment, (A) materially increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorCompany Employee, (C) adopt, or increase the coverage or benefits available under under, any (Benefit Plan or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the with any Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee;
(ii) (A) createsubject any of the assets of the Company or the Quota to any Lien, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the for Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonLiens;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or leasehold rights in material properties or assets that would be assets of the Company or sell, assign, license, transfer, convey, lease or otherwise dispose of any a material portion of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) assets of the Company, except, in each case, (w) as set forth in Schedule 5.5 of the Seller Disclosure Schedule in relation to the CVC Equity Interest (x) pursuant SPI-900029917v22 35 to an existing Contract, (y) inventory in the ordinary course or (z) for the purpose of disposing of obsolete or worthless assets;
(iv) enter into any commitment for capital expenditures with respect to the Business in excess of €100,000 for any individual commitment and €300,000 for all commitments in the aggregate;
(v) except as provided in Section 6.6 hereofwith respect to the Business, enter into or agree to enter into any merger or consolidation with with, any other Person, and not engage invest in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) incur, cancel or compromise any debt material Indebtedness or claim, claim or waive or release any material right of the Company except Business, except, in each case, in the Ordinary Course ordinary course of Business;
(vii) enter intosettle or compromise any pending or threatened Litigation, modify in each case related to the Business, (A) in a manner that would result in restrictions on the conduct of the Business (other than the payment of monetary damages) or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee(B) for an amount greater than €100,000;
(viii) introduce other than in the ordinary course, engage in any material change Litigation seeking to recover monetary damages;
(ix) amend any of the organizational documents of the Company;
(x) issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition, pledge or other encumbrance of any additional equity interests, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any equity interests, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any equity interests, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any equity interests of the Company;
(xi) split, combine, subdivide or reclassify any equity interests of the Company;
(xii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company, other than in connection with the Reorganization;
(xiii) except as provided in Section 5.6, the Company shall not make any distributions or dividends to the Seller; or
(xiv) agree to do anything prohibited by this Section 5.1(b). SPI-900029917v22 36
(c) Notwithstanding anything herein to the contrary, Buyer acknowledges that from and after the date hereof until the Closing (i) the operation of the Business remains in the dominion and control of Seller and the Company and that none of the Related Parties of Buyer will provide, directly or indirectly, any directions, orders, advice, aid, assistance or information to any officer, employee or other representative of either Seller or the Company with respect to the operation of the Business, including any material change in the types, nature, composition except as specifically contemplated or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which permitted by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any as otherwise consented to in advance by an officer of Seller, and (ii) neither Seller nor the Company Documents untrue shall be restricted or incorrect otherwise prohibited from, and Seller and the Company shall be entitled to, pay to Seller in any material respect cash dividends or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect other distributions with respect to the CompanyQuota, and otherwise make cash payments to Seller in their capacities as such.
Appears in 1 contract
Sources: Quota Purchase Agreement (Circor International Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closingearlier of the Closing or the termination of this Agreement, Seller and the Company shall:
(i) conduct the Business respective businesses of the Company only in the Ordinary Course of BusinessBusiness in all material respects;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including clients, customers and supplierssuppliers and service providers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practicein their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) in all material respects (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line outside of creditthe Ordinary Course of Business, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2010, including making such capital expenditures in the amounts and at the times set forth in such plan;, other than the capital expenditure to acquire a boat as previously approved by Purchaser; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement on Schedule 6.2(b) or with the prior written consent of NewcoPurchaser, Seller and the Company shall not:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of or other securities of, or other ownership interests in, the Company or repurchase, redeem or otherwise acquire any outstanding equity interests or other securities of, or other ownership interests in, the Company, other than dividends to Seller of amounts equal to (A) Cash in excess of $250,000 at on the Effective Date, and (B) the intercompany account receivable from Seller in order to settle that balance prior to Closing;
(ii) transfer, issue, sell, pledge, encumber or dispose of the equity interests or other securities of, or other ownership interests in, the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of, or other ownership interests in, the Company;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company, or amend the terms of any outstanding securities of the Company;
(iv) amend the certificate of incorporation or bylaws of the Company;
(v) (A) increase the salary or other compensation of any director director, manager, officer or Employee of the Company Employee, except for normal year-end increases in the Ordinary Course of Business, Business (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, Employee or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, managers, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors directors, managers or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(iivi) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Indebtedness; (B) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by of the Company; or (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of, or used by, the Company;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except material properties or assets of, or used by, the Company, other than for fair consideration in the Ordinary Course of Business) of the Company;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities securities, of any other Person;
(vix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course of Business;
(viixi) enter into any commitment for capital expenditures of the Company in excess of $10,000 for any individual commitment and $50,000 for all commitments in the aggregate, other than the capital expenditure to acquire a boat as previously approved by Purchaser;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeethe Company;
(viiixiii) introduce any material change with respect to the operation of the BusinessCompany, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsproducts or change its pricing, discount, allowance or return policies or grant any pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies;
(ixxiv) enter into any transaction or enter into, modify or renew any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxv) except for transfers of Cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons;
(xvi) make a change in its accounting or Tax reporting principles, methods or policies;
(i) make, change or revoke any Tax election, settle or compromise any Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (ii) prepare or file any Tax Return (or any amendment thereof) unless Seller has complied with Section 8.5;
(xviii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, Company to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixix) terminate, amend, restate, supplement supplement, abandon or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xiixx) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiiixxi) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xivxxii) take any action which would materially and adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxiii) agree to do anything (A) prohibited by this Section 6.2, (B) that which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Seller Documents or Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect with respect Effect; and
(xxiv) fail to the Companypay any required maintenance or other similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any applications for registration of Intellectual Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Powersecure International, Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this From the Agreement or Date until the Closing, except with the prior written consent of Newco, between the date hereof and the ClosingBuyer or as otherwise expressly permitted or required by this Agreement, the Shareholder shall cause the Company shallto:
(i) conduct carry on its business in substantially the Business only in same manner as it has heretofore and not introduce any new method of management, operation or accounting (except as required by GAAP or any applicable law or Order and except for actions taken to file PPP Applications to facilitate the Ordinary Course forgiveness of Businessthe PPP Loans);
(ii) comply with the terms and conditions of, and not cancel, its present insurance policies;
(iii) use its commercially reasonable efforts to (A) maintain and preserve the present its business operationsorganization intact, organization (including officers and Employees) and goodwill of the Company and (B) preserve retain the services of its present relationships with Persons having employees and (C) not hire any additional employees except for hires in the ordinary course of business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementpractices;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual applicable laws and other obligations provide notice to Buyer of the Company;any governmental inquiry, notice or investigation; and
(v) comply with maintain the capital expenditure plan of the Company for 2009 set forth instruments and agreements governing its outstanding Indebtedness and leases on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts their present terms and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss not incur new Indebtedness or impairment of all Intellectual Property of the Companyenter into new lease instruments or agreements.
(b) Without limiting From the generality of Agreement Date until the foregoingClosing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newcothe Buyer or as otherwise expressly permitted or required by this Agreement, the Shareholder shall ensure that neither the Shareholder nor the Company shall notwill:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companychange in its Charter Documents;
(ii) (A) create, incur, assume, guarantee, endorse issue any additional Equity Interests or issue or otherwise become liable create any options, warrants or responsible with respect rights to (whether directly, contingently or otherwise) acquire any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits Equity Interests;
(iii) subject increase or agree to increase the compensation payable to the Shareholder, member of the board of directors or any Lien officers, directors, managers, consultants or otherwise encumber or, employees except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of increases in the Purchased Assets;ordinary course consistent with past practice.
(iv) acquire make any material properties investments (other than short-term certificates of deposit of a commercial bank or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration trust company) in the Ordinary Course of Business) of the Company;
Equity Interests (v) except as provided in Section 6.6 hereofor options, enter into warrants or agree rights to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities Equity Interests) or Indebtedness of any Person;
(viv) cancel or compromise enter into any debt or claimcontract to incur, or waive otherwise agree to incur any liability or release make any material right capital payment or expenditure of any kind in excess of $25,000.00, other than in the ordinary course of its business and consistent with its past practice (it being agreed that the foregoing restriction shall not prohibit or limit the ability of any of the Company except to enter into contractual obligations or otherwise incur liabilities in respect of any existing projects pursuant to the terms and conditions of this Agreement);
(vi) prepay any Indebtedness other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, or (B) create, assume or permit to be created or imposed any liens or encumbrances, upon any of its assets or properties, whether now owned or hereafter acquired other than in the ordinary course of business consistent with past practice;
(vii) enter intoexcept as required by any applicable law or Order, modify (A) adopt, establish, amend or terminate any labor of its Employee Benefit Plans, or collective bargaining agreement orany other compensation plans or employee policies and procedures or (B) take any discretionary action, through negotiation or otherwiseomit to take any contractually required action, make if that action or omission could either (y) deplete the assets of any commitment of its Employee Benefit Plans, or incur (z) increase the liabilities or obligations under any Liability to any labor organization with respect to any Employeesuch plan;
(viii) introduce sell, assign, lease or otherwise transfer or dispose of any material change with respect to the operation of the Business, including any material change in the types, nature, composition its owned or quality of products leased property or services, or, equipment other than in the Ordinary Course ordinary course of Businessits business and consistent with its past practice, make any change in product specifications or prices to dispose of excess or terms of distributions of such productsobsolete inventory or equipment other than for appropriate value;
(ix) enter into negotiate for the acquisition of any transaction business or enter into, modify entity or renew the start-up of any Contract which by reason new line of its size or otherwise is not in the Ordinary Course of Businessbusiness;
(x) enter into waive any Contractof its rights or claims, understanding or commitment provided that restrains, restricts, limits or impedes it may negotiate and adjust bills and Accounts Receivables in the ability course of the Business, or the ability of Newco or Purchaser, to compete good faith disputes with or conduct any business or line of business customers in any geographic area or solicit the employment of any personsa manner consistent with past practice;
(xi) terminate, amend, restate, supplement or waive effect any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than transaction that is not in the Ordinary Course ordinary course of Business its business and consistent with its past practice or (B) Permit;that is prohibited hereby; or
(xii) settle amend or compromise terminate any pending contract or threatened Legal Proceeding or any claim or claims for, or agreement to which it is a party that would result in a loss of revenue of, an amount that could, individually or is not in the aggregate, reasonably be expected to be greater than $50,000;ordinary course of its business.
(xiiic) change or modify its creditFrom the Agreement Date until the Closing, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect except with the ability prior written consent of the parties to consummate the transactions contemplated Buyer or as otherwise expressly permitted or required by this Agreement;
(xv) amend , the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan Shareholder shall not make or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make revoke any of the representations and warranties of tax election respecting the Company in this Agreement or any of that affects the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyBuyer.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Transportation & Logistics Systems, Inc.)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except as required by applicable Law, as otherwise expressly provided by this Agreement contemplated hereby or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall:
(i) Sellers shall conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting Prior to the generality of the foregoingClosing, except as set forth on Schedule 8.2(b), as required by applicable Law, as otherwise expressly provided by this Agreement contemplated hereby or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company Sellers shall notnot take any of the following actions, with respect to the Business:
(i) incur any Indebtedness in excess of $100,000, other than debtor-in-possession financing to be obtained by the Sellers in their sole discretion, provided that such financing shall not (A) increase be provided by any Person that has submitted an indication of interest or proposal to the salary or other compensation of any director or Employee Sellers for an Alternative Transaction as of the Company except date hereof (excluding for normal year-end increases purposes hereof any lender to a Seller as of the date hereof), or (B) contain any terms that would impair the Sellers’ ability to consummate the transaction contemplated herein;
(ii) purchase or sell any material assets, including any Purchased Assets;
(iii) make any material capital expenditure or perform any material construction on any Owned Real Property or Leased Real Property, other than routine maintenance and repairs in the Ordinary Course of Business;
(iv) declare, set aside, make or pay any distribution of any Purchased Assets;
(v) make any loan or advance to any Person, other than intercompany loans among one or more Sellers;
(vi) except for the Management Incentive Plan, (A) materially increase the annual level of compensation for any employee of any Seller, (B) materially increase the annual level of compensation payable or to become payable by any Seller to any of its executive officers, (C) other than in the Ordinary Course of Business or as contemplated by the Sellers’ existing bonus plans, grant any bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) other than in the Ordinary Course of Business, increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, for or with any of the directors, officers, Employees, agents or representatives employees of the Company any Seller or otherwise modify or modify, amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company any Seller is a party; party or (E) pay involving a director, officer or make employee of any dividend Seller in his or distribution her capacity as a director, officer or employee of cash any Seller, other than renewals of existing employment agreements with any director, officer or other property with respect to the units or other equity interests employee of the Companyany Seller;
(iivii) enter into, amend or terminate any Collective Bargaining Agreement;
(viii) subject any Purchased Asset to any Lien (provided, however, the foregoing shall not be construed to prohibit any Lien recorded against the Owned Real Property or the Leased Real Property without the consent of any Seller, subject to Section 8.10(c) hereof), except (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible in connection with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to order authorizing the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; DIP Financing and (B) except the Sellers may grant easements in favor of a utility company to install, maintain and repair lines, poles, pipes and related equipment on, over and under any Owned Real Property or Leased Real Property which services such property; provided, however, that the Ordinary Course same do not impose any monetary obligation on the owner of Businesssuch property, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by materially interfere with the Company; (C) materially modify the terms current use of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions tosuch property, or investments inmaterially affect the fair market value of such property (each, any other Persona “Permitted New Utility Easement”);
(iiiix) enter into any merger, consolidation or similar transaction with any Person except as expressly permitted by this Agreement, subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsall relevant covenants and conditions;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vix) cancel or compromise any debt owed to any Seller, or claimany claim of any Seller against any Person, or waive or release any material right of relating to the Company except in the Ordinary Course of Business;
(viixi) enter into any material amendment, modification or supplement to the Purchased Contracts or lease, assign, sublease, terminate, fail to make any payment in respect of, or reject the Purchased Contracts;
(xii) enter into, modify amend or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability Material Contracts other than pursuant to any labor organization with respect to any Employeeclauses (vi) and (vii) above;
(viiixiii) introduce take any material change with respect to action of any kind which would impair or reduce the operation value of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsPurchased Assets;
(ixxiv) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;; or
(xxv) enter into any Contract, understanding agreement or commitment that restrains, restricts, limits or impedes the ability otherwise agree to do any of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;foregoing.
(xic) terminateWithout limiting the generality of the foregoing, amendfrom the date of this Agreement until the Closing and taking into consideration the Bankruptcy Case and all effects relating thereto, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;each Seller shall use commercially reasonable efforts to:
(xiii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, maintain itself as an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability entity of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts type set forth on the Balance Sheet except signatures pages hereof, duly organized, validly existing, and in good standing under the Ordinary Course laws of Business under loan the jurisdiction of incorporation, formation, or credit agreements organization of such Seller;
(ii) maintain the Purchased Assets in accordance with good and prudent business practices and in good operating condition and repair, subject only to ordinary wear and tear;
(iii) conduct its businesses, operations, and affairs consistent with past practice;
(iv) preserve intact its business organization;
(v) preserve its current relationships with its employees, consultants, suppliers, licensors, distributors, customers, and licensees, and any other Persons with which it has any material business relationship;
(vi) continue in full force and effect without material modification all policies or arrangements up binders of insurance that it currently maintains;
(vii) maintain the length of the payment cycles for its payables and receivables in accordance its past practices; and
(viii) exercise, but only after notice to Purchaser and receipt of Purchaser’s prior written agreement thereto, all rights of renewal pursuant to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited any Purchased Contract that by this Section 6.2, (B) that its terms would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyotherwise expire.
Appears in 1 contract
Sources: Asset Purchase Agreement (Macquarie Infrastructure CO LLC)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 8.2(a), (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause its Subsidiaries to:
(i) conduct the Business respective businesses of the Company and its Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and its Subsidiaries, and (B) preserve the present relationships with Persons having business dealings with customers and suppliers of the Company (including customers and suppliers);its Subsidiaries; and
(iii) maintain (A) use its commercially reasonable efforts to acquire from each of its licensees all inventories of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all seed of the assets and properties of the Company in such amounts and of such kinds comparable cotton varieties which include genes conferring resistance to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companybromoxynil herbicide.
(b) Without limiting the generality of the foregoingExcept (i) as set forth on Schedule 8.2(b), except (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit its Subsidiaries to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries;
(ii) issue or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries;
(iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of its Subsidiaries;
(iv) amend the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of its Subsidiaries;
(A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in the Ordinary Course or any of Businessits Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives employees of the Company or any of its Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of its Subsidiaries is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company;
(ii) (A) createCompany or any of its Subsidiaries, incurexcept, assumein each case, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed as required by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivvi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of its Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets);
(vvii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course or any of Businessits Subsidiaries;
(viiviii) except as provided for in the Company's Annual Budget for the 2005 fiscal year (a copy of which has been delivered to Parent), enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $250,000 for any individual commitment and $1,000,000 for all commitments in the aggregate;
(ix) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businessorganizations;
(x) enter into or agree to enter into any Contract, understanding merger or commitment that restrains, restricts, limits consolidation with any corporation or impedes the ability of the Businessother entity, or acquire the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment securities of any personsother Person;
(xi) terminate, amend, restate, supplement enter into or waive modify any rights under Contract with any (A) Material Contract, Real Property Lease, Personal Property Lease Stockholder or Intellectual Property License, other than in the Ordinary Course any Affiliate of Business or (B) Permitany Stockholder;
(xii) except to the extent required by Law, make or rescind any material election relating to Taxes or settle or compromise any pending claim, investigation, audit or threatened Legal Proceeding or any claim or claims for, or that would result in controversy relating to a loss material amount of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000Taxes;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts extent required by Law or GAAP, make any material change to any of its methods of accounting or methods of reporting revenue and other terms as in effect on the date of this Agreementexpenses or accounting practices; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2(b).
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement and the schedules attached hereto or with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to and through the Closing Date, pursuant to the Enron Purchase Agreement, Seller shall request, and use commercially reasonable efforts to have such request honored, that the Transfer Group Companies (A) conduct their respective businesses in all material respects in the Ordinary Course of Business, and (B) preserve in all material respects the present business operations, organization and goodwill of the Transfer Group Companies. For the avoidance of doubt, the foregoing shall not require Seller or any of the Transfer Group Companies to make any payments, incur any costs or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence or other action is required by Applicable Law, by contractual obligation with such third parties or to operate in the Ordinary Course of Business.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned), pursuant to the date hereof Enron Purchase Agreement, Seller shall request, and shall use commercially reasonable efforts to have such request honored, that none of the Closing, the Company Transfer Group Companies shall:
(i) conduct except as set forth on SCHEDULE 6.2(B)(I) or as contemplated by the Business only Contribution Agreement or in the Ordinary Course schedules thereto, declare, set aside, make or pay any non-cash dividend or other non-cash distribution in respect of Businessthe capital stock of any Transfer Group Company or repurchase, redeem or otherwise acquire for non-cash consideration any outstanding shares of the capital stock or other securities of, or other ownership interests in, any Transfer Group Company;
(ii) use its commercially reasonable efforts to (A) preserve the present business operationsexcept as set forth on SCHEDULE 6.2(B)(II), organization (including officers and Employees) and goodwill transfer, issue, sell or dispose of any shares of capital stock or other securities of any of the Company and (B) preserve Transfer Group Companies or the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all 500,000 common units of Northern Border beneficially owned by Northern Plains as of the assets and properties ofdate of this Agreement or grant options, warrants, calls or used by, the Company consistent with past practice, and (B) insurance upon all other rights to purchase or otherwise acquire shares of the assets and properties capital stock or other securities of the Company in such amounts and Transfer Group Companies or the 500,000 common units of such kinds comparable to that in effect on Northern Border beneficially owned by Northern Plains as of the date of this Agreement;
(iii) effect any recapitalization, reclassification, stock split, or like change in the capitalization of any Transfer Group Company;
(iv) except as set forth on SCHEDULE 6.2(B)(IV), amend the certificate of incorporation, bylaws or other organizational documents of any of the Transfer Group Companies;
(v) except as provided under the severance and retention plans and other employment arrangements listed on SCHEDULE 6.2(B)(V) and except as would not create or increase any liability of any Northern Plains Group Company beyond any amount reflected on the Balance Sheets, (A) maintain materially increase the books, accounts and records annual level of compensation of any employee of the Company in the Ordinary Course of Business, Transfer Group Companies (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than increases in the Ordinary Course of Business utilizing normal procedures and without discounting that in the aggregate will not result in a material increase in the benefits or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations compensation expense of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vTransfer Group Companies taken as a whole), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant of the Transfer Group Companies, other than in the Ordinary Course of Business, (C) materially increase the coverage or benefits available under any (or, except as permitted under clause (D) or as provided on SCHEDULE 6.2(B)(V), create or adopt any new) severance payBenefit Arrangement, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan Employee Benefit Plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Transfer Group Companies or otherwise materially modify or amend or terminate any such arrangement or plan or arrangement (D) other than in the Ordinary Course of Business, hire any person or enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the any Transfer Group Company is a party; party or involving a director, officer or employee of the Transfer Group Companies in his or her capacity as a director, officer or employee of the Transfer Group Companies, other than (E1) pay or make any dividend or distribution of cash or other property with respect to the units any Person who fills a vacant position or other equity interests of the Company;
(ii2) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently a technical consulting engagement; PROVIDED that any such agreement or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, amendment (x) the Indebtedness reflected has a term of one year or less, and in the Balance Sheetcase of (1), (y) the Indebtedness incurred provides for no increase in compensation other than in the Ordinary Course of Business since and, (y) in the Balance Sheet Datecase of (2), will not provide the technical consultant with more than $200,000 of base annual salary, or (z) in the Indebtedness case of hirings, agreements and amendments that do not meet the requirements of subclauses (x) or (y) will not, when aggregated with all other such hirings, agreements and amendments that do not meet the requirements of subclauses (x) or (y), require total payments of base annual salary in excess of $2,000,000 or payments to any individual in excess of $350,000.
(vi) except as set forth on Company Disclosure Schedule 4.5; SCHEDULE 6.2(B)(VI) and except for (A) trade payables, (B) indebtedness under existing lines of credit, (C) any extension, renewal or refinancing of existing indebtedness, (D) indebtedness for borrowed money incurred or guarantees issued in the Ordinary Course of Business and (E) indebtedness in an amount sufficient to allow the Transfer Group Companies to make any required capital contributions in accordance with the terms of the Northern Border Partnership Agreement, borrow monies for any reason, draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person (other than another Transfer Group Company or any Northern Border Company);
(vii) subject any of the material properties or assets (whether tangible or intangible) of the Transfer Group Companies to any Lien, except for (A) Permitted Exceptions or (B) Liens arising in the Ordinary Course of Business or by operation of Law, or subject the Equity Interest to any Lien;
(viii) except as set forth on SCHEDULE 6.2(B)(VIII), (A) acquire any properties or assets other than in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any such acquisitions of the Purchased Assets;
(iv) acquire any material properties or assets with a fair market value of up to $5,000,000 in the aggregate or (B) sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration material properties or assets of the Transfer Group Companies other than in the Ordinary Course of Business) , except for any such dispositions of properties or assets with a fair market value of up to $5,000,000 in the Companyaggregate;
(vix) until written notice is provided to Purchaser, enter into any labor or collective bargaining agreement of the Transfer Group Companies, through negotiation or otherwise, or make any material commitment or incur any material liability to any labor organization with respect to the Transfer Group Companies;
(x) except as set forth on SCHEDULE 6.2(B)(X), repurchase, discharge or satisfy any claim, debt or obligation of any of the Transfer Group Companies in an amount in excess of $2,000,000 in the aggregate, other than (A) in the Ordinary Course of Business, (B) pursuant to the terms of any Contract as in effect on the date of this Agreement or permitted to be entered into hereafter or (C) in the pursuit, prosecution or resolution of any pending FERC proceedings;
(xi) permit any of the Transfer Group Companies to enter into, or agree to enter into, any merger or consolidation with, any corporation or other entity;
(xii) pursuant to or within the meaning of the Bankruptcy Code or any similar federal, state or foreign law for the relief of debtors, commence a voluntary case, consent to the entry of an Order for relief against any of them in an involuntary case, consent to the appointment of a receiver, trustee, assignee, liquidator or similar official of them or for all or substantially all of its property or assets, or make a general assignment for the benefit of its creditors;
(xiii) fail to maintain, in full force and effect, to the extent commercially reasonably available, insurance coverage that is equivalent in all material respects to the insurance coverage currently in effect for the Transfer Group Companies under the Insurance Policies or comparable insurance; PROVIDED, HOWEVER, that Seller shall not be in breach of this Section 6.2(b)(xiii) if any current insurer refuses to renew or continue to extend insurance coverage to the Transfer Group Companies so long as Seller uses commercially reasonable efforts to obtain equivalent insurance coverage from another reputable insurer and nothing herein shall prevent Seller from replacing any existing insurance from a current insurer with substantially equivalent insurance from another reputable insurer;
(xiv) amend, modify or change the Principal Contribution Transaction Documents ( other than with respect to the Sublease and Tax Sharing Agreement and amendments contemplated in the Enron Purchase Agreement, including as provided in Section 6.6 hereof, enter into or agree to enter into 8.1(g)of the Enron Purchase Agreement);
(xv) except as set forth on SCHEDULE 6.2(B) (XV) make any merger or consolidation with any Person, and not engage in any new business or invest in, make a single loan, advance or capital contribution to, or otherwise acquire investment in, any Person who is not a Transfer Group Company or Northern Border Company (or any entity in which a Northern Border Company has an ownership interest) in excess of $5,000,000 or a series of such loans, advances and capital contributions to, or investments in, any such Person in excess of $15,000,000 in the securities aggregate, except for loans, advances, capital contributions and investments (A) pursuant to and in accordance with the terms of any Person;
(vi) cancel or compromise any debt or claimMaterial Contract, in each case existing as of the date of this Agreement, or waive or release any material right of the Company except (B) in the Ordinary Course of Business;
(viixvi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwiseexcept as set forth on SCHEDULE 6.2(B)(XVI), make or commit to make any commitment single capital expenditure in excess of $5,000,000 or incur any Liability commit to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation make a series of the Business, including any material change capital expenditures in excess of $15,000,000 in the types, nature, composition or quality of products or services, oraggregate (in each case, other than capital expenditures included in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or capital forecast previously provided to Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement); or
(xvii) authorize, or commit or agree to do anything (A) prohibited by this Section 6.2take, (B) that would make any of the representations and warranties of the Company actions referred to in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or paragraphs (Ci) that could be reasonably expected to have a Material Adverse Effect with respect to the Companythrough (xvi) above.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closing, (1) the Company Sellers shall, with respect to the Business, and (2) the Companies shall, and the Companies shall cause the Subsidiaries to:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employeesemployees) and goodwill of the Company Business and (B) preserve the present relationships with Persons having business dealings with the Company Business (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used byin, the Company consistent with past practiceBusiness, in each case, in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company referred to in clause (A) above in such amounts and of such kinds substantially comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Companies and Subsidiaries and those otherwise related to the Business in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on related to the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply in all material respects with all contractual and other obligations of the CompanyCompanies and Subsidiaries and those otherwise binding upon the Business;
(v) comply in all material respects with the capital expenditure plan of the Company Companies and Subsidiaries for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)the fiscal years 2005 and 2006, including substantially making such capital expenditures in the amounts and at the times set forth in such plan;; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser, (1) the Company Sellers shall not, with respect to the Business, and (2) the Companies shall not, and the Companies shall cause the Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, any of the Companies or Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, any of the Companies or Subsidiaries;
(ii) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other ownership interests in, any of the Companies or Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, any of the Companies or Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of any of the Companies or Subsidiaries, or amend the terms of any outstanding securities of any Company or Subsidiary;
(iv) amend the certificate of incorporation or by-laws or equivalent organizational or governing documents of any of the Companies or Subsidiaries;
(v) except as otherwise provided in Section 6.13, administer their employee vacation and paid time off policy, including year-to-year carryover allowances, other than in accordance with the Ordinary Course of Business with respect to employees of any of the Company or Subsidiaries and Business Employees and will not (A) increase the salary rate of compensation or other compensation benefits for any current or former director, officer, employee or independent contractor of any director or Employee of the Company Companies or Subsidiaries or Business Employee, or otherwise enter into or alter any employment, change in control, transaction or sale bonus, deferred compensation, severance, retirement, consulting or managerial services agreement with respect to any current or former director, officer, employee or independent contractor of any of the Companies or Subsidiaries or Business Employee, except for normal yearpromotion, merit or cost-end of-living increases to non-executive employees or independent contractors, the hiring of new employees (each a "New Hire") with a maximum of $175,000 in total annual target compensation (including bonus) but exclusive of commissions and value of Benefit Plans and in each case in the Ordinary Course of Business, or (B) establish, adopt, enter into or modify any collective bargaining agreement or compensation or benefit plan, in each case covering any current or former director, officer, employee or independent contractor of any of the Companies or Subsidiaries or Business Employee, other than amendments that would not increase costs on Purchaser, amendments to Benefit Plans required by Law or implementation of Benefit Plans to replace a similar terminating Benefit Plan on substantially the same terms as such terminating Benefit Plan;
(vi) except for letters of credit, performance bonds or guarantees and inter-company Indebtedness, provided or incurred, as the case may be, each in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of, or used in, the Business;
(ivviii) except as set forth on Schedule 6.2(b)(viii), acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration material properties or assets of, or used in, the Business other than in the Ordinary Course of Business) of the Company;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new business or line of business, invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities securities, of any other Person;
(vix) cancel or compromise any debt or claim, claim or waive or release any material right of any of the Company Companies or Subsidiaries, except in the Ordinary Course of Business;
(viixi) other than as set forth in the capital expenditure plan on the Companies and the Subsidiaries for the fiscal years 2005 and 2006, enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make into any commitment or incur for capital expenditures of the Companies and Subsidiaries in excess of $100,000 for any Liability to any labor organization with respect to any Employeeindividual commitment and $250,000 for all commitments in the aggregate;
(viiixii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsproducts or change its discount, allowance or return policies or grant any discount, allowance or return terms for any customer or supplier not in accordance with such policies;
(ixxiii) enter into any transaction or enter into, into or modify or renew any Material Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons;
(xv) make a material change in its accounting or Tax reporting principles, methods or policies;
(xvi) make, change or revoke any election concerning Taxes or Tax Returns, change an annual accounting period, enter into any closing agreement with respect to Taxes, settle or compromise any Tax claim or assessment or obtain or enter into any Tax ruling, in each case, if taking such action would materially affect the Taxes of any of the Companies or Subsidiaries after the Closing Date or prepare or file any material Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice except as required by Law;
(xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, any Company or the ability of Newco or Purchaser, Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personspersons (other than as provided for in this Agreement);
(xixviii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Licensed Intellectual Property LicenseProperty, other than in the Ordinary Course of Business or (B) Permit;
(xiixix) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000100,000;
(xiiixx) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxi) agree to do anything (or omit from doing anything solely in respect of clause (B)) (A) prohibited by this Section 6.2, (B) that which the Sellers or the Companies knew or would reasonably be expected to have known would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Seller Documents or Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could would have, or would be reasonably expected to have have, a Material Adverse Effect with respect Effect.
(c) Notwithstanding any other provision of this Agreement except the final sentence of this Section 6.2(c), neither the Reorganization nor any aspect thereof shall (1) constitute a breach of any representation, warranty, covenant or agreement hereunder or (2) give rise to any claim for indemnification hereunder (other than pursuant to Section 8.2(a)(v) and Section 9.1(ii)). "Reorganization" means (i) the extraction of Cash by the Sellers and their Affiliates from the Companies and Subsidiaries, by dividend or other means, and any related actions including conversion of CSG International Limited to an unlimited liability company (and any related change in ownership thereof among the Companies and Subsidiaries and related assumption of Liabilities thereof), (ii) elections under Treasury Regulation Sections 301.7701-1(3)(c) to treat certain Subsidiaries as disregarded entities and (iii)(A) the transfer to, and assumption by, any Company or Subsidiary of assets or properties (including contract rights and other intangible assets) and related Liabilities of the Sellers or their Affiliates (other than the Companies or Subsidiaries), which (1) are used or primarily related to the CompanyBusiness or (2) are set forth on Schedule 6.2(c) and (B) the transfer by the Companies and Subsidiaries to, and assumption by, the Sellers and any of their Affiliates (other than the Companies and Subsidiaries) of any and all assets or properties (including contractual rights or other intangible assets) and related Liabilities which are not used to any significant extent in the Business, including the FairPoint Business. Notwithstanding the foregoing, the Sellers shall not take or omit to take, or cause or permit any of the Companies or Subsidiaries to take or omit to take, any action in connection with the Reorganization that would impair or adversely affect in any material respect the operations of the Business after the Closing, it being understood that (x) the extraction of Cash from the Company and Subsidiaries shall not be deemed to impair or adversely affect such operations unless the same affects the ability to satisfy immediate Cash needs (such as payroll) or to satisfy performance bonds or similar commitments at or after Closing (and such condition did not exist prior the taking of actions contemplated by clause (i) of the definition of Reorganization) and (y) the conversion contemplated by clause (i) of the definition of Reorganization and the elections contemplated by clause (ii) of the definition of Reorganization shall not be deemed to impair or adversely affect such operations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Comverse Technology Inc/Ny/)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoPurchaser, between the date hereof and the Closing, the Company TAA shall:
(i1) conduct the Business its business only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii2) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)it;
(iii3) maintain (A) all of the its assets and properties ofin their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the its properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the its books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the Company;applicable to its operation; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi5) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of NewcoPurchaser, the Company TAA shall not:
(i1) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases trade payables and for indebtedness for borrowed money incurred in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice, (B) grant borrow monies for any bonus, benefit reason or other direct draw down on any line of credit or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, fordebt obligation, or with any of become the directorsguarantor, officerssurety, Employees, agents or representatives of the Company endorser or otherwise modify liable for any debt, obligation or amend or terminate any such plan or arrangement liability (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii2) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedliens that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsits properties or assets (whether tangible or intangible);
(iv3) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets its material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Business) of the Companybusiness consistent with past practice);
(v4) cancel or compromise any debt or claim or waive or release any material right except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice;
(5) enter into any commitment for capital expenditures in excess of $10,000 for any individual commitment and $15,000 for all commitments in the aggregate;
(6) introduce any material change with respect to its operation, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(7) enter into any transaction or make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(8) enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi9) cancel or compromise any debt or claim, or waive or release any material right except for transfers of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwisecash pursuant to normal cash management practices, make any commitment investments in or incur loans to, or pay any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Businessfees or expenses to, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into with any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementAffiliate; or
(xvii10) agree to do anything (A) prohibited by this Section 6.2, (B) that 5.3 or anything which would make any of the representations and warranties of the Company TAA in this Agreement or any of the Company Transaction Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Sub-Urban Brands, Inc.)
Conduct of the Business Pending the Closing. (a) Except (1) as otherwise expressly provided set forth on Schedule 8.2(a), (2) as required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, between during the period from the date hereof of this Agreement to and through the ClosingClosing Date, the Company Sellers shall:
(i) conduct the Business only in the Ordinary Course of Business, including, without limitation, with respect to (a) the pricing and terms of sale of inventory, (b) the timing, discounting and other practices in connection with the collection of accounts receivable, (c) the timing and other practices for payment of account payables and (d) compensation, bonuses, benefits and severance payable to Employees, subject to and in accordance with the further limitations set forth in Section 9.1(a);
(ii) use its their commercially reasonable efforts to (Aa) keep their assets intact and maintain their assets in at least as good a condition as their current condition (reasonable wear and tear excepted), (b) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (Bc) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)suppliers of the Business;
(iii) maintain perform in all material respects its obligations arising after the Petition Date under any Contract (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementincluding Real Property Leases);
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws that relate to or affect its assets and business or such Person's ownership and/or use or operation thereof, including the timely, complete and correct filing of all reports and maintenance of all records required by any Governmental Authority to be filed or maintained;
(v) continue to use and operate all assets and all aspects of its business used or operated by the Sellers as of the date hereof in a manner consistent with prior practice and in accordance in all material respects with all applicable Laws, and not enter into any contract nor otherwise act, nor suffer or permit any other Person to act, to restrict, interfere with or prevent the use or operation of such assets or business;
(vi) promptly notify Purchaser in writing of any incidents or accidents occurring on or after the date hereof involving any assets or property owned or operated by the Sellers that resulted or could reasonably be expected to result in damages or losses to any portion of the business of the Sellers or damages in excess of $100,000;
(vii) take steps promptly notify Purchaser in writing of the existence of any adverse business conditions arising on or after the date hereof threatening the continued, normal business operations of the Sellers or of any agreement, consent or order of any Governmental Authority involving any of the Sellers;
(viii) promptly notify Purchaser of any Legal Proceeding of the type described in Section 5.12 commenced after the date hereof and/or, to renew all Permits the Knowledge of Sellers, threatened after the date hereof against the Sellers;
(ix) provide prompt written notice to Purchaser (i) of any change in a timely manner prior any of the information contained in the representations and warranties made by the Sellers in Article V hereof or any exhibits or schedules referred to their lapseherein or attached hereto, including any Schedules and shall promptly furnish any information that Purchaser may reasonably request in relation to such change; provided, however, that such notice shall not operate to cure any breach of the representations and warranties made by the Company herein or any exhibits or schedules referred to herein or attached hereto, including any Schedules; and
(viiix) pay all maintenance and similar fees and take all other appropriate actions as necessary provide prompt written notice to prevent the abandonment, loss or impairment of all Intellectual Property Purchaser of the Company.occurrence of any event that results in or would reasonably be expected to result in a failure to satisfy any of the conditions set forth in Article X.
(b) Without limiting the generality of the foregoingExcept (1) as set forth on Schedule 8.2(b), except (2) as otherwise expressly provided required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, during the Company period from the date of this Agreement to and through the Closing Date, Sellers shall not:
(i) (A) increase the salary take any action as a result of which any representation or other compensation of any director or Employee warranty of the Company except for normal year-end increases Sellers made in Article V would be rendered untrue or incorrect if such representation or warranty were made immediately following the Ordinary Course of Business, (B) grant any bonus, benefit taking or other direct or indirect compensation failure to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any take such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyaction;
(ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any material claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased AssetsAssets to any Lien, except for Liens existing as of the date hereof;
(iv) acquire any material properties or assets other than in the Ordinary Course of Business, or enter into any partnership, joint venture or similar arrangement (including, but not limited to, the contemplated joint venture with a Pakistani company for the formation and operation of a manufacturing facility near Lahore, Pakistan), or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Seller's assets other than inventory in the Ordinary Course of Business and obsolete or worthless equipment permitted to be sold pursuant to the DIP Credit Agreement;
(except v) cancel, compromise or settle any debt or claim or waive or release any right in excess of $20,000 individually and $250,000 in the aggregate or, in connection with Trade Payables, accounts payable to employees for fair consideration travel and entertainment expense, workers' compensation payments, or trade receivables, other than in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise enter into any debt or claim, or waive or release any material right commitment for capital expenditures in excess of the Company except $250,000 for all commitments in the Ordinary Course of Businessaggregate except for capital expenditure projects described by project and amount as line items as set forth on Schedule 8.2(b) hereof not to exceed the amount for each such category as described and set forth in such schedule;
(vii) enter into, modify or terminate any labor or collective bargaining agreement Collective Bargaining Agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization;
(viii) introduce incur any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, Indebtedness other than in the Ordinary Course of its Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into assign, modify, cancel, otherwise impair or permit to lapse any transaction Material Contract (other than expiration in accordance with the terms thereof as a result of the passage of time and other than Real Property Leases as to which Section 8.2(b)(x) applies ) involving annual expenditures, purchases or enter intorevenues in excess of $100,000 annually;
(x) assign, modify sublease, amend in any material respect, terminate, exercise (or renew waive) or permit to lapse any Contract which by reason options to renew, options to expand or options to purchase pursuant to any Real Property Leases involving expenditures in excess of its size or otherwise is not $100,000 annually (other than expiration in accordance with the terms thereof as a result of the passage of time);
(xi) make any payments (a) in respect of professional fees for attorneys and accountants except to the extent and on the timing permitted under existing interim compensation and fee application procedures (other than professional fees payable to ordinary course professionals to the extent authorized to be paid under the existing Order of the Bankruptcy Court signed on 6/3/03 Authorizing Retention and Compensation of Professionals Utilized in the Ordinary Course of Business;
), (xb) enter into any Contractunder, understanding in respect of or commitment that restrains, restricts, limits or impedes pursuant to the ability KERP Program (other than the existing scheduled payment for the second quarter of 2005 pursuant to the BusinessKERP Order), or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment fees and expenses of any persons;
financial advisor of Sellers (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than monthly fees in the Ordinary Course of Business currently approved amounts pursuant to existing procedures) or (Bc) Permit;
(xii) settle in respect of fees and expenses of any broker or compromise any pending finder of Sellers except as consented to by Purchaser and except for such fees and expenses of a broker or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up finder relating to the maximum amounts and other terms as in effect on sale of real property by Sellers which are approved by the date of this AgreementBankruptcy Court prior to June 30, 2005; or
(xviixii) agree to do anything (A) prohibited by this Section 6.2, 8.2.
(Bc) that would make any During the period from the date of the representations and warranties of the Company in this Agreement to and through the Closing Date, Sellers shall not declare, authorize, make or enter into a commitment to make (x) any dividend, distribution or other payment in respect of any Seller's capital stock or other equity or rights to acquire the Company Documents untrue same or incorrect engage in any material respect similar payment or could result in any of the conditions to the Closing not being satisfied distribution or (Cy) that could be reasonably expected to have a Material Adverse Effect any payment, prepayment or distribution with respect to any Indebtedness of the CompanySellers other than payments in respect of the DIP Credit Agreement as required or permitted pursuant to the terms of the DIP Credit Agreement or payment pursuant to the Adequate Protection Order.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by in this Agreement or with the prior written consent of Newcothe Owners, between the date hereof and the Closing, the Company shall, and the Company shall cause the Subsidiaries to:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employeesemployees) and goodwill of the Company and the Subsidiaries and (B) preserve the present relationships with Persons having business dealings with the Company and the Subsidiaries (including customers and suppliers);
(iii) maintain (A) all of the material assets and properties of, or used by, the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet utilizing normal procedures in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditBusiness, and (C) comply with all contractual and other obligations of the CompanyCompany and the Subsidiaries;
(v) comply with the capital expenditure plan of the Company and the Subsidiaries for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2007, including making such capital expenditures in the amounts and at the times set forth in such plan;; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by in this Agreement or with the prior written consent of Newcothe Owners, the Company shall not, and the Company shall cause the Subsidiaries not to:
(i) except as set forth on Schedule 7.2(b)(i), declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, the Company or any of the Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries, other than regular quarterly dividend payments in respect of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock;
(ii) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any of the Subsidiaries, or amend the terms of any outstanding securities of the Company or any Subsidiary;
(iv) amend the certificate of incorporation or by-laws or equivalent organizational or governing documents of the Company or any of the Subsidiaries;
(v) with respect to its directors, officers, employees and consultants (A) increase the salary or other compensation of any director or Employee of the Company except consultant or, other than for normal year-end periodic increases in the Ordinary Course of BusinessBusiness increase the salary or compensation of any officer or other employee, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director, officer, employee or directorconsultant, (C) other than changes required by Law, amend or enter into any employment, consulting, deferred compensation, bonus or other incentive compensation, change in control, retention, severance, termination or similar agreement, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurancechange in control, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonusretention, severance, special paytermination, consultingvacation, non-competition salary continuation, insurance, retirement plan, payment or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; arrangement, or (E) pay or make forgive any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyloan indebtedness or, except as required by any Company Plan, grant any loan;
(iivi) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any material Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5other than Transaction Indebtedness; (Bii) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued of the Company or guaranteed by any of the CompanySubsidiaries; or (Ciii) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsmaterial properties or assets (whether tangible or intangible) of, or used by, the Company or any of the Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration material properties or assets of, or used by, the Company and the Subsidiaries, other than in the Ordinary Course of Business) of the Company;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not or engage in any new line of business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities securities, of any other Person;
(vix) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company or any of the Subsidiaries except in the Ordinary Course of Business;
(viixi) enter into any new commitment for capital expenditures of the Company and the Subsidiaries in excess of $50,000 for any individual commitment and $500,000 for all commitments in the aggregate;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company or any Employeeof the Subsidiaries;
(viiixiii) introduce any material change with respect to the operation of the BusinessCompany or any of the Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any material change in product specifications or prices or terms of distributions of such productsproducts or change its pricing, discount, allowance or return policies or grant any pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies;
(ixxiv) enter into any transaction or enter into, modify or renew any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, and except for agreements in effect on the date hereof, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons;
(xvi) make, change or revoke any accounting or Tax election, reporting principles, methods or policies, settle or compromise any Tax claim or liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) its method of accounting for Tax purposes;
(xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of Newco or Purchaser, any Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixviii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) material Permit;
(xiixix) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or other than in the aggregate, reasonably be expected to be greater than $50,000Ordinary Course of Business;
(xiiixx) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxi) agree to do anything (A) prohibited by this Section 6.27.2, (B) that which would make any of the representations and warranties of the Company Signing Stockholders in this Agreement or any of the Signing Stockholder Documents or Company Documents untrue or incorrect in any material respect or could result in would cause any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect Effect;
(xxii) fail to pay any required maintenance or other similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any applications for registration of Intellectual Property;
(xxiii) other than as may be required as a result of a change in applicable Law, regulation or GAAP, change any of the Insurance Companies’ reserving methods (it being understood that the foregoing should not apply to changes in the amount of reserves);
(xxiv) abandon, modify, waive, terminate or otherwise change any insurance licenses of the Insurance Companies, except (A) as may be required in order to comply with respect applicable Law or (B) such modifications or waivers of insurance licenses as would not, individually or in the aggregate, restrict the business or operations of such Insurance Company in any material respect;
(xxv) take any action that would reasonably be expected to result in a reduction of any financial ratings of the Company or any of its Subsidiaries, including the insurer financial strength ratings of the Insurance Companies;
(xxvi) make any material change in its underwriting, claims management, pricing, reserving or reinsurance practices;
(xxvii) materially reduce the amount of insurance covering the business of the Company and its Subsidiaries provided by existing insurance policies;
(xxviii) make any material modifications to any form of insurance contract other than in the Ordinary Course of Business; and
(xxix) except for the payments contemplated by the Agreement, make any other payments, or obligate itself to make any payments, to any Signing Stockholder or their Affiliates or family members and make any payments, or obligate itself to make any payments, to the Company.Agency
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) grant any bonus, benefit increase the annual level of compensation payable or other direct or indirect compensation to become payable by the Company to any Employee or directorof its executive officers, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution her capacity as a director, officer or employee of the Company. The Sellers through the Company shall have the ability to direct the payment of cash and accounts receivable to any Employee both prior to and after Closing.
(vi) Except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person, or change the terms of payables or receivables;
(vii) Subject to any Lien (except for leases that do not materially impair the use of the property with respect to subject thereto in their respective businesses as presently conducted), any of the units properties or other equity interests assets (whether tangible or intangible) of the Company;
(iiviii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Sellers or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Sellers; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Seller, between prior to the date hereof and Closing the Closing, the Company Purchaser shall:
(i) conduct Conduct the Business businesses of the Purchaser only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Purchaser and (B) preserve the its present relationships relationship with Persons parties having business dealings with the Company (including customers and suppliers)Purchaser;
(iii) maintain Maintain (A) all of the assets and properties ofof the Purchaser in their current condition, or used by, ordinary wear and tear excepted and except for dispositions in the Company consistent with past practice, ordinary course of business and (B) insurance upon all of the properties and assets and properties of the Company Purchaser in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Purchaser in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Purchaser; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, prior to the Company Closing the Seller shall not, and shall cause the Purchaser not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Purchaser or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Purchaser;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Purchaser or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Purchaser;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Purchaser;
(iv) Amend the Articles of Incorporation or Bylaws of the Purchaser;
(v) (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessPurchaser, (B) increase the annual level of compensation payable or to become payable by the Purchaser to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company Purchaser awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Purchaser or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Purchaser is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the CompanyPurchaser in his or her capacity as a director, officer or employee of the Purchaser;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother party, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, lien (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Purchaser;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyPurchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Purchaser except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures out of the ordinary course;
(xi) Permit the Purchaser to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Purchaser to enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, to or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000party;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Purchaser to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;any Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Documents other agreement referenced herein untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyClosing.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as required by applicable Law, (II) as otherwise expressly provided contemplated by this Agreement or (III) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause the Subsidiaries to:
(i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries, and (B) preserve the present relationships with Persons having business dealings with customers and suppliers of the Company (including customers and suppliers)the Subsidiaries;
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the CompanyCompany and the Subsidiaries;
(v) comply with the capital expenditure plan of the Company and the Subsidiaries for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2007, including making such capital expenditures in the amounts and at the times set forth in such plan;; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoingExcept (I) as required by applicable Law, except (II) as otherwise expressly provided contemplated by this Agreement or (III) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit the Subsidiaries to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Subsidiaries;
(iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of the Subsidiaries;
(iv) amend the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of the Subsidiaries;
(v) other than in the Ordinary Course of Business or as required by Law or Contract, (A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in or any of the Ordinary Course of BusinessSubsidiaries, (B) materially increase the annual level of compensation payable or to become payable by the Company or any of the Subsidiaries to any of their respective directors or executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (CD) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Benefit Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; party or (E) pay involving a director or make any dividend or distribution of cash or other property with respect to the units or other equity interests executive officer of the Company;
(ii) (A) createCompany or any of the Subsidiaries, incurexcept, assumein each case, guarantee, endorse as required by applicable Law from time to time in effect or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonEmployee Benefit Plans;
(iiivi) subject to any Lien Lien, any of the properties or otherwise encumber orassets (whether tangible or intangible) of the Company or any of the Subsidiaries, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company and the Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets);
(vviii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Subsidiaries;
(ix) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of RMB 500,000.00 for any individual commitment and RMB 2,000,000.00 for all commitments in the aggregate;
(x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries;
(xi) permit the Company or any of the Subsidiaries to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) make or rescind any election relating to Taxes, settle or compromise any pending or threatened Legal Proceeding or any claim or claims forclaim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes, or that would result in a loss except as required by applicable law or GAAP, make any material change to any of revenue of, an amount that could, individually its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify preparation of its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementmost recent Tax Return; or
(xviixiii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company6.2(b).
Appears in 1 contract
Conduct of the Business Pending the Closing. Seller hereby covenants that, from the date hereof to and including the Closing Date, unless Purchaser shall otherwise agree (which agreement shall not be unreasonably withheld) or as otherwise contemplated by this Agreement:
(a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof Seller's business shall be conducted and the Closing, the Company shall:
(i) conduct the Business only Manufacturing Assets shall be repaired and maintained in the Ordinary Course of Businessordinary and usual course, in a manner consistent with past practice;
(iib) use its commercially reasonable efforts to (A) preserve except in the present ordinary course of business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Seller shall not:
not (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property commitment to make any capital expenditures after the Closing Date with respect to the units Business individually in excess of $5,000 or other equity interests in the aggregate in excess of the Company;
$25,000; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any capital assets of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation Business with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that couldbook value, individually or in the aggregate, reasonably be expected in excess of $5,000 or encumber any of its capital assets; (iii) amend any of its material contracts that are part of the Business or (iv) grant any increases in employee compensation to be greater than $50,000an employee engaged in the Business, except pursuant to normal performance reviews;
(xiiic) change or modify Seller shall use its credit, collection or payment policies, procedures or practices, including acceleration best efforts to preserve for Purchaser the goodwill of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesall persons dealing with Seller in connection with the Business;
(xivd) take any action which would adversely affect Seller shall cooperate fully with Purchaser as to arrangements for the ability transfer of the parties Manufacturing Assets to consummate the transactions contemplated by this AgreementPurchaser in an orderly fashion;
(xve) amend Seller shall maintain in full force and effect all insurance policies now in effect or renewals thereof covering the operating agreement of Manufacturing Assets or its business and the Companyemployees employed in the Business and shall cooperate fully with Purchaser as to arrangements for obtaining insurance policies concerning the Manufacturing Assets and insurance and related benefits for the New XeTel Employees in accordance with the terms hereof in an orderly fashion after Closing;
(xvif) agree Seller shall promptly notify Purchaser of (i) any breach or violation of, default or event of default under, or actual or threatened termination or cancellation of any material contract or other material instrument relating to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2its business, (Bii) that would make any material loss of, damage to, or disposition of any of the representations Manufacturing Assets (other than the sale or use of inventories in the ordinary course of business), and warranties of the Company in this Agreement (iii) any claim or litigation, threatened or instituted, or any of the Company Documents untrue other material adverse event or incorrect in any material respect occurrence involving or could result in any of the conditions to the Closing not being satisfied or affecting its business;
(Cg) that could be reasonably expected to have a Material Adverse Effect Seller shall consult with Purchaser with respect to any collective bargaining negotiations affecting the CompanyBusiness;
(h) Except as set forth in the Disclosure Letter, Seller has not agreed to, and shall not, sell, dispose of, distribute, encumber or enter into any agreement, arrangement or commitment, whether oral or written, for the sale, disposition, distribution or encumbrance of any portion of the Business (other than the sale or use of inventories in the ordinary course of business) and has not initiated and has not participated (nor shall it participate except to the extent in the reasonable opinion of Seller's counsel participation is necessary for Seller's Board of Directors to discharge its fiduciary duties to Seller's Shareholders) through agents, representatives or otherwise, in any discussions or negotiations with, or otherwise solicit from, any corporation, business or person any proposals or offers relating to any such disposition of any such portion of the Business, and no such action is contemplated by Seller as of the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sbe Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use its commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, in accordance with GAAP consistent with the Company's historical procedures, where applicable, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company except where non-compliance is not substantial and would not cause a Material Adverse Effect on the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of their respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createexcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personperson;
(iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company;
(vix) cancel or compromise any debt or claim or waive or release any material right of the Company or any of its Subsidiaries except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures out of the ordinary course;
(xi) permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000person;
(xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or
(xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Company shallSeller shall use their best efforts, and shall cause Pentec or PCM to:
(i) conduct Conduct the Business businesses of Pentec or PCM only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Pentec and PCM and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Pentec and suppliers)PCM;
(iii) maintain Maintain (A) all of the assets and properties ofof Pentec and PCM in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of Pentec and properties of the Company PCM in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company Pentec and PCM in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Pentec and PCM; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause Pentec and PCM not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of Pentec or PCM or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, Pentec or PCM;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of Pentec or PCM or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of Pentec or PCM;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of Pentec or PCM;
(iv) Amend the certificate of incorporation or by-laws of Pentec or PCM;
(A) materially increase the salary or other annual level of compensation of any director employee of Pentec or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessPCM, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Pentec or PCM is a party; party or (E) pay involving a director, officer or make any dividend employee of Pentec or distribution PCM in his or her capacity as a director, officer or employee of cash Pentec or other property with respect to the units or other equity interests of the CompanyPCM;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of Pentec or PCM;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of Pentec or PCM except, with respect to the Companyitems listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of Pentec or PCM except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000;
(xi) Permit Pentec or PCM to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit Pentec or PCM to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit Pentec or PCM to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Investment Managers Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoPurchasers, between the date hereof and the Closing, Shareholder and Sellers shall, and Sellers shall cause the Company shallAcquired Subsidiaries to:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of Sellers and the Company Acquired Subsidiaries and (B) preserve the present relationships with Persons having business dealings with Sellers and the Company Subsidiaries (including clients, customers and supplierssuppliers and service providers);
(iii) maintain (A) all of the assets and properties of, or used by, Sellers and the Company consistent with past practiceAcquired Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets of Sellers and properties of the Company Acquired Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of Sellers and the Company Acquired Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of Sellers and the CompanyAcquired Subsidiaries;
(v) comply with the capital expenditure plan of Sellers and the Company Acquired Subsidiaries for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)2017, including making such capital expenditures in the amounts and at the times set forth in such plan;; and
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement on Schedule 7.2(b) or with the prior written consent of NewcoPurchasers, the Company Shareholder and Sellers shall not, and Sellers shall cause the Acquired Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of or other securities of, or other ownership interests in, Sellers or any of the Acquired Subsidiaries or repurchase, redeem or otherwise acquire any outstanding equity interests or other securities of, or other ownership interests in, Sellers or any of the Acquired Subsidiaries, except for cash dividends;
(ii) transfer, issue, sell, pledge, encumber or dispose of the equity interests or other securities of, or other ownership interests in, Sellers or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of, or other ownership interests in, Sellers or any of the Acquired Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of Sellers or any of the Subsidiaries, or amend the terms of any outstanding securities of Sellers or any of the Acquired Subsidiaries;
(iv) amend the certificate of incorporation or bylaws or equivalent organizational or governing documents of Sellers or any of the Acquired Subsidiaries;
(v) (A) increase the salary or other compensation of any director director, manager, officer or Employee of the Company Employee, except for normal year-end periodic increases in the Ordinary Course of Business, Business (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, Employee or directorconsultant, (C) except as required by law, increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, managers, officers, Employees, agents or representatives of any Seller or any of the Company Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors directors, managers or officers of Sellers or any of the Company Acquired Subsidiaries (or amend any such agreement) to which any Seller or any of the Company Acquired Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(iivi) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted ExceptionsIndebtedness, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred other than accounts payable in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Business; (B) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued of Sellers or guaranteed by any of the CompanyAcquired Subsidiaries; or (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of, or used by, any of Sellers or the Acquired Subsidiaries;
(ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except material properties or assets of, or used by, Sellers and the Acquired Subsidiaries, other than for fair consideration in the Ordinary Course of Business) of the Company;
(vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities securities, of any other Person;
(vix) cancel or compromise any debt or claim, claim or waive or release any material right of any Seller or any of the Company Acquired Subsidiaries except in the Ordinary Course of Business;
(viixi) enter into any individual commitment for capital expenditures of Sellers and the Acquired Subsidiaries in excess of $20,000;
(xii) except as required by law, enter into, modify or terminate any labor or collective bargaining agreement of any Seller or any of the Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any EmployeeSeller or any of the Acquired Subsidiaries;
(viiixiii) introduce any material change with respect to the operation of any Seller or any of the BusinessAcquired Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsproducts or change its pricing, discount, allowance or return policies or grant any pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies;
(ixxiv) enter into any transaction or enter into, modify or renew any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business;
(xxv) except for transfers of Cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons;
(xvi) make a change in its accounting or Tax reporting principles, methods or policies;
(i) make, change or revoke any Tax election, settle or compromise any Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (ii) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and Sellers shall have provided Purchasers a copy thereof (together with supporting papers) at least three Business Days prior to the due date thereof for Purchasers to review and approve (such approval not to be unreasonably withheld or delayed);
(xviii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, any Seller or the ability of Newco or Purchaser, any Acquired Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xixix) terminate, amend, restate, supplement supplement, abandon or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, Contract other than in the Ordinary Course of Business or (B) Permit;
(xiixx) settle or compromise any pending or threatened in writing and received by Sellers Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000claims;
(xiiixxi) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesLiabilities;
(xivxxii) knowingly take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this AgreementTransactions;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xviixxiii) agree to do anything (A) prohibited by this Section 6.27.2, (B) that which would make any of the representations and warranties of the Company Shareholder in this Agreement or any of the Company Shareholder Documents or Seller Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could would be reasonably expected to have a Material Adverse Effect with respect Effect; or
(xxiv) fail to the Companypay any required maintenance or other similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any applications for registration of Intellectual Property.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing Date, except (I) as set forth on Schedule 7.2, (II) as reasonably determined jointly by Seller and Purchaser to be required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), the Company Seller shall:
(i) conduct the Business only in the Ordinary Course of Business;; and
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);suppliers of Seller.
(iiib) maintain Except (AI) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities as set forth on Schedule 7.2, (II) as reasonably determined jointly by Seller and Purchaser to be required by applicable Law, (III) as otherwise contemplated by this Agreement or (IV) with the Balance Sheet prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall not, as it relates to the Business:
(i) other than in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment as required by Law, Contract or the terms of such accounts or Liabilities utilizing all available cash and any available line of creditEmployee Benefit Plan, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C) adopt, or increase the coverage or benefits available under under, any (Employee Benefit Plan or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make with any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee;
(ii) (A) createsubject any of the Purchased Assets to any Lien, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the for Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;
(iv) acquire any material properties or assets that would be Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any portion of the Purchased Assets (except for fair consideration pursuant to an existing Contract or purchases or sales of parts, equipment, supplies and marketing materials in the Ordinary Course of BusinessBusiness or for the purpose of disposing of obsolete or worthless assets);
(iv) make any purchase of inventory other than pursuant to purchase orders existing as of the Companydate hereof and previously disclosed to Purchaser;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, claim or waive or release any material right of the Company except Seller that constitutes a Purchased Asset with a value in excess of $50,000 individually or $100,000 in the Ordinary Course aggregate;
(vi) enter into any commitment for capital expenditures (relating to the Business) in excess of Business$20,000 for any individual commitment and $50,000 for all commitments in the aggregate, other than purchases of inventory made on a capitalized basis;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation relating to the Business or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition except as required by applicable Law or quality of products or services, or, other than in the Ordinary Course of BusinessGAAP, make any change in product specifications to any of its methods of accounting or prices or terms of distributions of such productsaccounting practice;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Bell Industries Inc /New/)
Conduct of the Business Pending the Closing. (a) Except Prior to the Closing or earlier termination of this Agreement, except (i) as required by applicable Law, (ii) as otherwise expressly provided by this Agreement or (iii) with the prior written consent of NewcoBuyer (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall:
(i) , and shall cause the Company Group to, use commercially reasonable efforts to conduct the Business business of the Company Group only in the Ordinary Course of Business; provided that actions or inactions that a reasonably prudent operator of a business in similar circumstance in the industries in which the Company Group operates would take or omit to take in response to the occurrence of any Public Emergency shall, in each case, be considered to have been taken in the Ordinary Course of Business for purposes of this Section 7.2 (subject to, in the case of this proviso, reasonable notice to and consultation with Buyer in advance of taking such actions or refraining from taking such actions to the extent reasonably practicable).
(b) Prior to the Closing or earlier termination of this Agreement, except (i) as required by applicable Law, (ii) as otherwise expressly provided by this Agreement, (iii) with the prior written consent of Buyer (which consent, other than in respect of clause (v) below, shall not be unreasonably withheld, delayed or conditioned) or (iv) as set forth in Schedule 7.2(b) of the Company Disclosure Schedules, the Company shall not and shall cause the Company Group not to:
(i) mortgage, pledge or subject to any Lien any material assets, except Permitted Liens;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill incur or guarantee any Debt of the Company and type set forth in (B1) preserve the present relationships with Persons having business dealings with the Company clause (including customers and suppliers);
(iiia) maintain (A) all of the assets and properties ofdefinition thereof, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company other than borrowings under any existing revolving credit facility in the Ordinary Course of Business, (B2) continue to collect accounts receivable and pay accounts payable and clause (b) of the definition thereof, (3) clause (c) of the definition thereof, other Liabilities set forth on the Balance Sheet than capital or finance leases in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply substantially consistent with the capital expenditure plan set forth in Schedule 7.2(b)(xiv) of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)Schedules, including making such capital expenditures in or (4) clause (f) of the amounts and at the times set forth in such plandefinition thereof;
(viiii) comply in all sell, assign or transfer any material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all assets, other appropriate actions as necessary to prevent the abandonment, loss than sales or impairment transfers of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement aged or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company;
(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred obsolete equipment in the Ordinary Course of Business since the Balance Sheet Date, or (zit being understood that transfers of Intellectual Property are addressed in clause (iv) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person;
(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsbelow);
(iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease abandon or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;
(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, orIntellectual Property, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contractnon-exclusive licenses granted to customers, Real Property Lease, Personal Property Lease or Intellectual Property License, suppliers and other than partners in the Ordinary Course of Business or (B) Permitwith respect to abandonments, cancellations or lapses of immaterial or obsolete Intellectual Property in the Ordinary Course of Business;
(xiiv) settle or compromise acquire any pending or threatened Legal Proceeding or any claim or claims forPerson, or that would result in a loss acquire any material assets constituting an operating business or line of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000business;
(xiiivi) change or modify amend its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesOrganizational Documents;
(xivvii) take (A) issue, sell, pledge or transfer any action which would adversely affect the ability of the parties its equity securities or warrants, options or other rights to consummate the transactions contemplated by this Agreementacquire its equity securities, (B) purchase, redeem, cancel or otherwise acquire any of its equity securities or (C) split, combine, consolidate, subdivide, reduce, reclassify or redesignate any of its equity securities;
(xvviii) amend declare, pay or set aside dividends or distributions (other than (A) cash dividends or cash distributions made prior to the operating agreement Measurement Time, in each case that do not materially impair the operation of the Company;
(xvi) agree to materially increase Liabilities from business of the amounts set forth on the Balance Sheet except Company Group in the Ordinary Course of Business under or (B) dividends or distributions solely among members of the Company Group made in the Ordinary Course of Business);
(ix) adopt a plan or agreement of liquidation, dissolution, merger, consolidation, restructuring, reclassification, recapitalization or other reorganization;
(x) (A) amend or modify any Material Contract in a manner that is adverse in any material respect to the Company Group, (B) voluntarily terminate any Material Contract or permit any Material Contract to expire (except automatic expirations that occur by the operation of the terms of any such Material Contract or terminations or expirations that are not adverse in any material respect to the Company Group) or (C) enter into or renew any Material Contract, except (1) entry into or renewal of any Material Contract of the type described in Section 5.13(a)(i), Section 5.13(a)(ii), Section 5.13(a)(iii), Section 5.13(a)(xv) or Section5.13(a)(xxiv) in the Ordinary Course of Business and (2) renewal of any Material Real Property Lease in the Ordinary Course of Business and on arm’s-length terms, in each case of clauses (1) and (2), so long as such Material Contract is not referenced in any other sub-section of Section 5.13(a);
(xi) make any capital investment in, or any loan or credit agreements advance (other than advances for reimbursable Ordinary Course of Business expenses or arrangements up advances of expenses to directors and employees pursuant to the maximum amounts and Organizational Documents of a member of Company Group or existing indemnification agreements) to, any other Person (other than any member of the Company Group) outside the Ordinary Course of Business;
(xii) enter into any transaction with any of its directors or executive officers outside the Ordinary Course of Business except as otherwise permitted by Section 7.2(b)(xiii);
(xiii) except as required by the terms of any existing Collective Bargaining Agreement or Company Benefit Plan as in effect on the date of this Agreement or amended in compliance with this Agreement (or any plan, policy, agreement, Contract, program, practice or arrangement that would be considered a Company Benefit Plan or Collective Bargaining Agreement if it were in existence on the date of this Agreement that is established in compliance with this Agreement), (A) grant any loan to, increase the compensation or benefits of, or grant or pay any bonus, cash incentive, profit-sharing, equity or equity based award (including synthetic equity) or similar payment to any Company Service Provider; (B) grant or pay (or otherwise increase) any severance, change in control, retention, termination or similar compensation or benefits to any Company Service Provider; (C) amend, adopt, establish, agree to establish, enter into or terminate any material Company Benefit Plan (or any plan, policy, agreement, Contract, program, practice or arrangement that would be considered a material Company Benefit Plan if it were in existence on the date of this Agreement), other than (1) immaterial amendments that do not materially increase liabilities under such Company Benefit Plan and (2) renewals of Company Benefit Plans that are health and welfare benefit plans in the Ordinary Course of Business that do not increase costs of any such plan by more than 15%; (D) take any action to accelerate the vesting, funding or payment of any compensation or benefit under any Company Benefit Plan or Collective Bargaining Agreement; (E) hire, promote or terminate any employee of the Company Group (other than a termination for cause), except for the hiring, promotion or termination of employees in the Ordinary Course of Business (including to fill vacancies) where such action does not relate to an employee whose annual base salary is (or would be) $250,000 or above; (F) engage or terminate any individual independent contractor, other than (1) the engagement of an individual independent contractor on an at-will basis or pursuant to an independent contractor agreement that is terminable at will or upon no more than 30 days’ notice with no liability (other than any liability for compensation or fees owed for services rendered prior to the date of such termination), (2) the termination of an individual independent contractor for cause or due to a material breach under the applicable independent contractor agreement or (3) where such action does not relate to individual independent contractors whose annual fees are (or would be) $250,000 or above individually; (G) implement any “plant closing,” “mass layoff” or similar action that triggers notice obligations under the WARN Act; (H) take any action that could result in a complete withdrawal (as defined in Section 4203 of ERISA) or partial withdrawal (as defined in Section 4205 of ERISA) by the Company Group or any of its ERISA Affiliates from any Multiemployer Plan; or (I) enter into, amend or terminate any Collective Bargaining Agreement (or any Contract that would be considered a Collective Bargaining Agreement if it were in existence on the date of this Agreement) or otherwise recognize or certify a Union as the bargaining representative for any employees of the Company Group; provided that the Company Group may renegotiate any Collective Bargaining Agreement in effect on the date of this Agreement that is scheduled to expire in accordance with its terms within the three-month period following the date of this Agreement in the Ordinary Course of Business on terms substantially identical to such Collective Bargaining Agreement (provided that any increases in compensation and benefits for employee subject to such Collective Bargaining Agreement do not exceed a maximum cumulative total of 3% per annum);
(xiv) make any capital expenditures (or incur any obligations or liabilities in respect thereof) (A) in 2025 in excess of 120% of the applicable line item of the capital expenditure plan set forth in Schedule 7.2(b)(xiv) of the Company Disclosure Schedules or (B) in 2026 in excess of 1.5% of forecasted 2026 revenues plus capital expenditures set forth in such plan not expended in 2025;
(xv) form any subsidiary or enter into any joint venture, partnership, limited liability corporation or similar arrangement;
(xvi) enter into any new line of business or abandon or discontinue an existing line of business;
(xvii) change any of its cash management or accounting practices or methods, except as may be required in order to comply with changes in GAAP or applicable Law;
(xviii) (A) make, change or revoke any material election with respect to Taxes; (B) adopt or change (or request any Governmental Body to change) any material aspect of any method of accounting for Tax purposes; (C) enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with any Governmental Body; (D) settle, compromise or surrender any material Tax claim, audit or assessment for an amount in excess of reserves therefor on the financial statements of the Company and the Company Subsidiaries; (E) file any material amended Tax Return; (F) affirmatively surrender any right to claim a material Tax refund; or (G) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment; in the case of clauses (A) and (B), except as required by a change in applicable Law or as updated or modified to take into account changes in applicable Law pursuant to the OBBBA;
(xix) acquire any ownership interest in any real property, or sell or dispose of any Owned Real Property;
(xx) settle, compromise, withdraw from or initiate any Legal Proceeding (A) for an amount in excess of $1,000,000 individually, or $5,000,000 in the aggregate, or (B) involving the imposition on any member of the Company Group of any non-monetary relief or the making by any member of the Company Group of any admissions of liability or responsibility;
(xxi) except as set forth in Schedule 7.2(b)(xxi) (and in each such case, on arm’s length terms), assign, sublease, transfer or otherwise grant another Person the right to occupy any Material Real Property Lease other than any Dark Lease; or
(xviixxii) otherwise agree or enter into an agreement or otherwise commit to do any of the foregoing.
(c) Notwithstanding anything to the contrary contained herein, during the period from the date hereof until the Closing, each member of the Company Group shall be permitted to utilize any and all available Cash, in each case in such amounts as the applicable member of the Company Group shall deem necessary, appropriate or desirable in its sole discretion, to (A) prohibited by this Section 6.2at any time pay Company Transaction Expenses; (B) at any time repay outstanding Debt; and (C) declare, pay or set aside cash dividends or other cash distributions to Seller, in the case of clauses (A), (B) that would make any and (C), so long as such amounts are paid prior to the Measurement Time, are not included in Closing Cash and do not materially impair the operation of the representations and warranties business of the Company Group in this Agreement or any the Ordinary Course of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyBusiness.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto:
(i) conduct Conduct the Business respective businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice;
(ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company;
(iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply Comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companylaws.
(b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to:
(i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) Amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company;
(iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables;
(iiivii) subject Subject to any Lien or otherwise encumber or, lien (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company;
(ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser;
(vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice;
(x) Enter into any commitment for capital expenditures out of the ordinary course;
(xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business;
(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee;
(viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products;
(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business;
(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons;
(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit;
(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000;
(xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;any Seller; or
(xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(xv) amend the operating agreement of the Company;
(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or
(xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.
Appears in 1 contract