Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of Purchaser, the Sellers shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) use their best efforts to (A) preserve their present business operations and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain the 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 relations with it; (iii) maintain (A) all of the assets and properties of the Sellers and the Business in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the assets and properties of the 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 Documents in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts payable of the Business in the Ordinary Course of Business; (v) 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 Business, and in such case, the Sellers shall consult with Purchaser with respect to such Key Customer or Key Vendor; (vi) comply in all material respects with applicable Laws; and (vii) not take any action which would adversely affect the ability of the Parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders. (b) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the 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; (ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for 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 Disclosure 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 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 the 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, any corporation 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; (viii) enter into any commitment for capital expenditures in excess of $25,000 for any individual commitment and $50,000 for all commitments in the aggregate; (ix) negotiate, enter into, modify or terminate any labor or collective bargaining agreement or 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; (A) implement any employee layoffs that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with 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 payment of money damages not in excess of $25,000 individually or $100,000 in the aggregate; (xii) other than in the Ordinary Course of Business, accelerate the collection of any Accounts Receivable or other payment (including by offering or promoting discounts or rebates outside of the Ordinary Course of Business); (xiii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of the Sellers to compete with or conduct any business or line of business in any geographic area; (xiv) make any changes in its financial accounting methods, except insofar as may have been required by (i) applicable Law or (ii) a change in GAAP; (xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Business, or (z) with respect to immaterial or obsolete Intellectual Property); (xvi) amend the organizational documents of any Seller; (xvii) make any expenditure related to or in connection with the Excluded Business; or (xviii) agree to do anything prohibited by this Section 8.2.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including the prosecution Agreement, each of the Bankruptcy Cases Canterbury and sale process contemplated therein) or with the prior written consent of Purchaser, the Sellers Hygeia shall:
(i) conduct the Business its businesses only in the Ordinary Course of Business;
(ii) use their best commercially reasonable efforts to to: (A) preserve their its present business operations operations, organization, material rights, franchises, Intellectual Property Rights and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain the Purchased Assets and the Business’s rights, relationships, Contracts and goodwill of its customers, lenders, suppliers, regulators, vendors, service providers, personnel and others present relationship with Persons having material business relations dealings with itsuch party;
(iii) maintain use its commercially reasonable efforts to maintain: (A) all of the material assets and properties of the Sellers and the Business such party in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Sellers and the Business such party in such amounts and amounts, of such kinds comparable and with such carriers as are substantially similar to that in effect on the date of this Agreement;
(iv) (A) maintain the Documents its books, accounts and records in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts payable of the Business in the Ordinary Course of Businessaccordance with generally accepted accounting principles;
(v) notify give all required notices of the Purchaser promptly (transactions contemplated by this Agreement and in use its commercially reasonable efforts to obtain 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 Business, and in such case, the Sellers shall consult with Purchaser with respect third party consents material to such Key Customer party’s business that are necessary or Key Vendoradvisable in order to consummate the transactions contemplated by this Agreement;
(vi) comply in all material respects with applicable Laws; and
(vii) not take any action which would reasonably be expected to adversely affect the ability of the Parties parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Except as otherwise expressly transactions contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the 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;
(ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for 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 Disclosure 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 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 the 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;; and
(vii) enter into promptly notify Stratus in writing if, prior to the consummation of the Closing, to their Knowledge: (a) any of the representations and warranties contained herein applicable to Canterbury or agree Hygeia are not accurate and complete in all material respects or (b) Canterbury or Hygeia fails to enter into comply with or satisfy any merger material covenant, condition or consolidation withagreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any corporation or other entity, and notice pursuant to this Section 8.6 shall not engage in any new business or invest in, make a loan, advance or capital contribution to, limit or otherwise acquire affect the securities of any other Person;
(viii) enter into any commitment for capital expenditures in excess of $25,000 for any individual commitment and $50,000 for all commitments in the aggregate;
(ix) negotiate, enter into, modify or terminate any labor or collective bargaining agreement or 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 remedies available hereunder to any labor organization;
(A) implement any employee layoffs that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with 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 payment of money damages not in excess of $25,000 individually or $100,000 in the aggregate;
(xii) other than in the Ordinary Course of Business, accelerate the collection of any Accounts Receivable or other payment (including by offering or promoting discounts or rebates outside of the Ordinary Course of Business);
(xiii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of the Sellers to compete with or conduct any business or line of business in any geographic area;
(xiv) make any changes in its financial accounting methods, except insofar as may have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Business, or (z) with respect to immaterial or obsolete Intellectual Property);
(xvi) amend the organizational documents of any Seller;
(xvii) make any expenditure related to or in connection with the Excluded Business; or
(xviii) agree to do anything prohibited by this Section 8.2Stratus.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Stratus Media Group, Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of PurchaserParent, during the period from the date of this Agreement to the Closing, the Sellers shall:Company shall (and the Company shall cause each Person in the Company Group to):
(i) conduct the Business its businesses only in the Ordinary Course of Business;
(ii) use their best commercially reasonable efforts to (A) preserve their its present business operations operations, organization, material rights, franchises, Intellectual Property Rights and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain its present relationship with Persons having relationships with the Purchased Assets Company and the Business’s rightsCompany Subsidiaries, relationshipsincluding but not limited to, Contracts and goodwill of its customers, lenders, suppliers, regulatorscontractors, vendors, service providers, personnel distributors and others having business relations with itemployees;
(iii) use its commercially reasonable efforts to maintain (A) all of the material assets and properties of the Sellers Company and the Business Company Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Sellers Company and the Business Company Subsidiaries in such amounts and amounts, of such kinds comparable and with such carriers as are substantially similar to that in effect on the date of this Agreement;
(iv) maintain its books, accounts and records in accordance with GAAP;
(v) make all required notices of the transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents that are necessary in order to consummate the transactions contemplated by this Agreement;
(vi) promptly notify Parent in writing if, prior to the consummation of the Closing (A) maintain any of the representations and warranties contained in Article V cease to be accurate and complete in all material respects or (B) the Company fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 7.1(a)(vi) shall not limit or otherwise affect the remedies available hereunder to Parent; and
(vii) (A) terminate any Company plan that is intended to be qualified under Section 401(a) of the Code, such plan termination to become effective the day before Closing, and (B) amend the Management Change in Control Plan, as mutually agreed by the Company and Parent and terminate such plan effective as of the Closing, provided that such termination shall not be deemed to affect the payment of the Management Incentive Plan Payments triggered by the Merger, as contemplated by this Agreement and the Aggregate Consideration Spreadsheet.
(b) Except as otherwise expressly provided in this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall not, and the Company shall cause each Person in the Company Group not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) 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 Company Subsidiaries;
(ii) take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(iii) transfer, pledge, encumber, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Company 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 Company Subsidiaries;
(iv) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of the Company Subsidiaries;
(v) amend the Charter Documents of the Company or any of the Company Subsidiaries;
(vi) except in the Ordinary Course of Business and with respect to employees, (A) increase the annual level of compensation of any employee of the Company or any of the Company Subsidiaries, (B) continue increase the annual level of compensation payable or to collect Accounts Receivables and pay accounts become payable by the Company or any of the Business Company Subsidiaries to any of their respective officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (D) increase the coverage or benefits available under any (or create any new) or, except as explicitly permitted in this Agreement, accelerate the time of payment or vesting of any, 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 any of the Company Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or any of the Company Subsidiaries is a party or involving a current or former director, officer or employee of the Company or any of the Company Subsidiaries;
(vii) incur or assume any Indebtedness except in the Ordinary Course of Business;
(v) 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 Business, and in such case, the Sellers shall consult with Purchaser with respect to such Key Customer or Key Vendor;
(vi) comply in all material respects with applicable Laws; and
(vii) not take any action which would adversely affect the ability of the Parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the 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;
(ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for 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 Disclosure 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 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 the preparation of its most recent Tax Returns;
(viviii) 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) ), or any shares of capital stock of the Sellers, other than Permitted Liens in Company or any of the Ordinary Course of Business or which are otherwise released in connection with the Bankruptcy Cases and the Sale OrderCompany Subsidiaries;
(viiix) acquire, purchase, license or lease any properties or assets of any Person or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company and the Company Subsidiaries, including Intellectual Property;
(x) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities or assets of any other Person;
(viiixi) cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Company Subsidiaries;
(xii) enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $25,000 for any individual commitment and $50,000 100,000 for all commitments in the aggregate;
(ixxiii) negotiate, enter into, modify or terminate any labor or collective bargaining agreement of the Company or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employeesCompany Subsidiary or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organizationorganization with respect to the Company or any Company Subsidiary;
(Axiv) implement enter into any employee layoffs transaction or enter into, modify or renew any Contract with a distributor or which would be a Material Contract if entered into prior to the date hereof or that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with annual compensation in excess of $150,000would reasonably be expected to have a Company Material Adverse Effect;
(xixv) releaseexcept for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, assignmake any investments in or loans to, compromise, settle or agree pay any fees or expenses or make other payments to settle any Action, (other than compromisespursuant to and in accordance with existing Contracts), settlements or agreements to settle Actions that involve only enter into or materially modify any Contract with any Affiliate of the payment Company or any of money damages not in excess the Company Subsidiaries, or any director, officer or employee of $25,000 individually the Company or $100,000 in any of the aggregateCompany Subsidiaries;
(xiixvi) make or revoke any material election in respect of Taxes, change any accounting method in respect of material Taxes, prepare any Tax Return in a manner which is not consistent with past practice with respect to the treatment of items on such Tax Return, file any amendment to a Tax Return that will or may more than immaterially increase the liability of the Company or any Company Subsidiary after the Closing, incur any liability for Taxes other than in the Ordinary Course of Business, accelerate the collection settle any material claim or assessment in respect of Taxes, or consent to any Accounts Receivable extension or other payment (including by offering or promoting discounts or rebates outside waiver of the Ordinary Course limitation period applicable to any material claim or assessment in respect of Business)Taxes or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling or agreement with any Taxing Authority;
(xiiixvii) enter into any Contract, Contract or understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of the Sellers any Company Subsidiary to compete with or conduct any business or line of business in any geographic areaarea or enter into, modify, amend, or terminate any Contract;
(xivxviii) make any changes in its financial accounting methods, except insofar as may have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Businessterminate, amend, restate, supplement or (z) with respect to immaterial or obsolete Intellectual Property);waive any rights under any Material Contract; \
(xvixix) amend the organizational documents of terminate, amend, restate, supplement or waive any Seller;rights under any material Permit; and
(xvii) make any expenditure related to or in connection with the Excluded Business; or
(xviiixx) agree to do anything or commit to do any of the foregoing prohibited by this Section 8.2Sections 7.1(b).
(c) From the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement in accordance with the terms of this Agreement, the Company and Parent shall not, and shall not permit any of their respective Subsidiaries to, take, or agree or commit to take, any action that would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated by this Agreement and the Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement (Revolution Lighting Technologies, Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including Agreement, VasculoMedics shall, given the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of Purchaser, the Sellers shallcurrent financial constraints:
(i) conduct the Business its business only in the Ordinary Course of Business;
(ii) use their best commercially reasonable efforts to to: (A) preserve their its present business operations operations, organization, material rights, franchises, Intellectual Property Rights and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain preserve, to the Purchased Assets and the Business’s rightsextent feasible, relationships, Contracts and goodwill of its customers, lenders, suppliers, regulators, vendors, service providers, personnel and others present relationship with Persons having material business relations dealings with itsuch party;
(iii) maintain use its commercially reasonable efforts to maintain: (A) all of the material assets and properties of the Sellers and the Business such party in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Sellers and the Business such party in such amounts and amounts, of such kinds comparable and with such carriers as are substantially similar to that in effect on the date of this Agreement;
(iv) (A) maintain the Documents its books, accounts and records in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts payable of the Business in the Ordinary Course of Businessaccordance with generally accepted accounting principles;
(v) notify give all required notices of the Purchaser promptly (transactions contemplated by this Agreement and in use its commercially reasonable efforts to obtain 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 Business, and in such case, the Sellers shall consult with Purchaser with respect third party consents material to such Key Customer party’s business that are necessary or Key Vendoradvisable in order to consummate the transactions contemplated by this Agreement;
(vi) comply in all material respects with applicable Laws; and
(vii) not take any action which would reasonably be expected to adversely affect the ability of the Parties parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Except as otherwise expressly transactions contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the 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;
(ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for 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 Disclosure 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 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 the 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;; and
(vii) enter into promptly notify Stratus in writing if, prior to the consummation of the Closing, to its Knowledge: (a) any of the representations and warranties contained herein applicable to VasculoMedics are not accurate and complete in all material respects or agree (b) VasculoMedics fails to enter into comply with or satisfy any merger material covenant, condition or consolidation withagreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any corporation or other entity, and notice pursuant to this Section 7.5 shall not engage in any new business or invest in, make a loan, advance or capital contribution to, limit or otherwise acquire affect the securities of any other Person;
(viii) enter into any commitment for capital expenditures in excess of $25,000 for any individual commitment and $50,000 for all commitments in the aggregate;
(ix) negotiate, enter into, modify or terminate any labor or collective bargaining agreement or 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 remedies available hereunder to any labor organization;
(A) implement any employee layoffs that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with 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 payment of money damages not in excess of $25,000 individually or $100,000 in the aggregate;
(xii) other than in the Ordinary Course of Business, accelerate the collection of any Accounts Receivable or other payment (including by offering or promoting discounts or rebates outside of the Ordinary Course of Business);
(xiii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of the Sellers to compete with or conduct any business or line of business in any geographic area;
(xiv) make any changes in its financial accounting methods, except insofar as may have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Business, or (z) with respect to immaterial or obsolete Intellectual Property);
(xvi) amend the organizational documents of any Seller;
(xvii) make any expenditure related to or in connection with the Excluded Business; or
(xviii) agree to do anything prohibited by this Section 8.2Stratus.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of PurchaserParent, during the period from the date of this Agreement to the Closing, the Sellers shall:Company shall (and the Company shall cause each Person in the Company Group to):
(i) conduct the Business its businesses only in the Ordinary Course of Business;
(ii) use their best commercially reasonable efforts to (A) preserve their its present business operations operations, organization, material rights, franchises, Intellectual Property Rights and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain its present relationship with Persons having material business dealings with the Purchased Assets Company and the Business’s rightsCompany Subsidiaries, relationshipsincluding but not limited to, Contracts and goodwill of its customers, lenders, suppliers, regulatorscontractors, vendors, service providers, personnel distributors and others having business relations with itemployees;
(iii) use its commercially reasonable efforts to maintain (A) all of the material assets and properties of the Sellers Company and the Business Company Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Sellers Company and the Business Company Subsidiaries in such amounts and amounts, of such kinds comparable and with such carriers as are substantially similar to that in effect on the date of this Agreement;
(iv) maintain its books, accounts and records in accordance with generally accepted accounting principles;
(Av) maintain give all required notices of the Documents transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents material to the Company’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement;
(vi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;
(vii) promptly notify Parent in writing if, prior to the consummation of the Closing, to its Knowledge (a) any of the representations and warranties contained in Article V cease to be accurate and complete in all material respects or (b) the Company fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 7.3(vii) shall not limit or otherwise affect the remedies available hereunder to Parent; and
(viii) at the Parent’s request, take reasonable steps to terminate any Company Plan that is intended to be qualified under Section 401(a) and (k) of the Code, such plan termination to become effective before the Closing.
(b) Except as otherwise expressly provided in this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall not, and the Company shall cause each Person in the Company Group not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) 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 Company Subsidiaries;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Company 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 Company Subsidiaries;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of the Company Subsidiaries;
(iv) amend the certificate of incorporation or by-laws of the Company or any of the Company Subsidiaries;
(v) except in the Ordinary Course of Business and with respect to employees other than officers of the Company, (A) increase the annual level of compensation of any employee of the Company or any of the Company Subsidiaries, (B) continue increase the annual level of compensation payable or to collect Accounts Receivables and pay accounts become payable by the Company or any of the Business Company Subsidiaries to any of their respective officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (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, 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 any of the Company Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or any of the Company Subsidiaries is a party or involving a current or former director, officer or employee of the Company or any of the Company Subsidiaries;
(vi) incur or assume any Indebtedness except in the Ordinary Course of Business;
(v) 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 Business, and in such case, the Sellers shall consult with Purchaser with respect to such Key Customer or Key Vendor;
(vi) comply in all material respects with applicable Laws; and
(vii) not take any action which would adversely affect the ability of the Parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the 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;
(ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for 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 Disclosure 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 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 the 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) ), or any shares of capital stock of the Sellers, other than Permitted Liens in Company or any of the Ordinary Course of Business or which are otherwise released in connection with the Bankruptcy Cases and the Sale OrderCompany Subsidiaries;
(viiviii) 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 and the Company Subsidiaries, including Intellectual Property;
(ix) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities of any other Person;
(viiix) cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Company Subsidiaries;
(xi) enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $25,000 250,000 for any individual commitment and $50,000 500,000 for all commitments in the aggregate;
(ixxii) negotiate, enter into, modify or terminate any labor or collective bargaining agreement of the Company or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employeesCompany Subsidiary or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organizationorganization with respect to the Company or any Company Subsidiary;
(Axiii) implement permit the Company or any employee layoffs of the Company Subsidiaries to enter into any transaction or to enter into, modify or renew any Contract with a distributor or which would be a Material Contract if entered into prior to the date hereof or that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment of any employee with annual compensation in excess of $150,000would reasonably be expected to have a Company Material Adverse Effect;
(xixiv) releaseexcept for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, assignpermit the Company or any of the Company Subsidiaries to make any investments in or loans to, compromise, settle or agree pay any fees or expenses or make other payments to settle any Action, (other than compromisespursuant to and in accordance with existing Contracts), settlements or agreements to settle Actions that involve only enter into or materially modify any Contract with any Affiliate of the payment Company or any of money damages not in excess the Company Subsidiaries, or any director, officer or employee of $25,000 individually the Company or $100,000 in any of the aggregateCompany Subsidiaries;
(xiixv) make or revoke any material election in respect of Taxes, change any accounting method in respect of material Taxes, prepare any Tax Return in a manner which is not consistent with past practice with respect to the treatment of items on such Tax Return, file any amendment to a Tax Return that will or may more than immaterially increase the liability of the Company or any Company Subsidiary after the Closing, incur any liability for Taxes other than in the Ordinary Course of Business, accelerate the collection settle any material claim or assessment in respect of Taxes, or consent to any Accounts Receivable extension or other payment (including by offering or promoting discounts or rebates outside waiver of the Ordinary Course limitation period applicable to any material claim or assessment in respect of Business)Taxes or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling or agreement with any Taxing Authority;
(xiiixvi) enter into any Contract, Contract or understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of the Sellers any Company Subsidiary to compete with or conduct any business or line of business in any geographic areaarea or enter into, modify, amend or terminate any Contract which if so entered into, modified, amended or terminated would be reasonably be expected to have a Company Material Adverse Effect;
(xivxvii) make any changes in its financial accounting methods, except insofar as may have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, terminate, amend, restate, supplement or waive any rights under any Material Contract;
(yxviii) non-exclusive licenses granted terminate, amend, restate, supplement or waive any rights under any material Permit; and
(xix) agree to third Persons do anything prohibited by this Sections 7.3(b).
(c) Except as otherwise expressly provided in this Agreement or with the prior written consent of the Company, during the period from the date of this Agreement to the Closing, Parent shall not:
(i) issue any shares of Parent Preferred Stock, Parent Common Stock or any other security of Parent convertible into Parent Common Stock to fund the cash portion of the Merger Consideration and to satisfy the conditions set forth in Section 8.2(d) with a conversion price or effective price less than the Average Closing Price;
(ii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the capital stock of Parent or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, Parent;
(iii) effect any recapitalization, reclassification, stock split or like change in the Ordinary Course capitalization of BusinessParent;
(iv) amend the Certificate of Incorporation of Parent to adversely affect the rights of the holders of Parent Common Stock;
(v) incur or assume any Indebtedness except in the ordinary course of its business;
(vi) enter into or agree to enter into any merger or consolidation with any corporation or other entity, and not invest in, make a loan, material advance or capital contribution to or otherwise acquire the securities of any other Person;
(zvii) except in the ordinary course of its business with respect to immaterial employees other than officers of Parent, (A) increase the annual level of compensation of any employee of the Parent, (B) increase the annual level of compensation payable or obsolete Intellectual Property);to become payable by Parent to any officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (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, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of Parent or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any collective bargaining, employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which Parent is a party or involving a current or former director, officer or employee of Parent; and
(xvi) amend the organizational documents of any Seller;
(xvii) make any expenditure related to or in connection with the Excluded Business; or
(xviiiviii) agree to do anything prohibited by this Section 8.27.3(c).
Appears in 1 contract
Sources: Merger Agreement (Revolution Lighting Technologies, Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by provided in this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of PurchaserParent, during the period from the date of this Agreement to the Effective Time, as applicable, the Sellers Company, Columbia Blocker and TKH Blocker shall, and the Company shall cause the Company Subsidiaries to do the following:
(i) conduct the Business their respective businesses only in the Ordinary Course of Business;
(ii) use their best respective commercially reasonable efforts to (A) preserve their respective present business operations businesses, operations, organizations and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain the Purchased Assets and the Business’s rights, relationships, Contracts and goodwill of its customers, lenders, suppliers, regulators, vendors, service providers, personnel and others having present relationships with Persons with whom they have material business relations with itdealings;
(iii) use their respective commercially reasonable efforts to maintain (A) all of the their respective material assets and properties of the Sellers and the Business in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the their respective properties and assets and properties of the 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 Documents in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts payable of the Business in the Ordinary Course of Business;
(v) 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 Business, and in such case, 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, including all laws and FCC Rules relating to the WCS Spectrum Licenses or their use;
(v) maintain in full force and effect the WCS Spectrum Licenses;
(vi) in the case of the Company and the Company Subsidiaries, maintain the WCS Spectrum Licenses, in substantially the same condition as of the date hereof, and shall not take any action out of the Ordinary Course of Business with respect to the WCS Spectrum Licenses;
(vii) give all required notices of the transactions contemplated by this Agreement and, following the termination of the XM Agreement, use its Best Efforts to obtain all third party consents material to the Company’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement;
(viii) promptly provide Parent with true and correct copies of all material information and documents in the Company’s or its attorneys’ or its agents’ possession, or that is obtained during the relevant time period, that relates to the WCS Spectrum Licenses, including communications sent to or received by the FCC, XM Satellite Radio Holdings Inc. or Sirius Satellite Radio Inc.; provided, that none of the Company, Columbia Blocker or TKH Blocker shall have any obligation hereunder to provide any information or documents that are publicly available or, if to do so, would effectively waive any attorney-client privilege of any of the Selling Parties with respect thereto or violate any of the Selling Parties’ obligations under the XM Agreement;
(ix) promptly provide Parent with true and correct copies of all written communications sent to or received by the FCC with regard to the transactions contemplated hereby (it being understood that none of the Company, Columbia Blocker or TKH Blocker shall have any obligation to provide any such communications that relate to the XM Agreement or the transactions contemplated thereby);
(x) promptly provide Parent with notice of any Legal Proceeding threatened or initiated against any Selling Party by a third party relating to the consummation of the transactions contemplated by this Agreement, which notice shall set forth in reasonable detail the nature and basis of the claims asserted in such Legal Proceeding; and
(viixi) not take any action which would reasonably be expected to adversely affect the ability of the Parties parties to consummate the Transactions other than transactions contemplated by this Agreement; provided, however, that none of the Company, Columbia Blocker or TKH Blocker shall be prohibited from fulfilling any of their obligations under the XM Agreement, including, any obligation to consummate the transactions contemplated thereby in connection with marketing lieu of consummating the Business to other potential biddersAcquisitions as contemplated by this Agreement.
(b) Except as otherwise expressly contemplated by provided in this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without with the prior written consent of PurchaserParent, during the Sellers period from the date of this Agreement to the Effective Time, none of the Company, Columbia Blocker or TKH Blocker shall, and the Company shall notnot permit either Company Subsidiary to do any of the following:
(i) issuedeclare, createset aside, incurmake or pay any dividend or other distribution (whether in cash, assume stock or guarantee property) in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any indebtednessoutstanding shares of the capital stock or other securities of, or other than pursuant ownership interests in, the Company or any of its Subsidiaries, except the Company, Columbia Blocker and TKH Blocker may distribute any cash held by them to their respective stockholders at any time prior 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, 2024Closing Date;
(ii) acquire any properties or assets (other than inventory in the Ordinary Course of Business) or sell, assign, license, transfer, conveyissue, lease sell or otherwise dispose of any shares of capital stock or other securities of the Purchased Assets Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any such Persons, provided that (except x) the Company may prior to the Effective Time accept capital contributions from or issue additional shares of Common Stock or Preferred Stock to Columbia Blocker, TKH Blocker and Persons who are Company Stockholders as of the date hereof, the proceeds of which are used for sale the working capital needs of inventory the Company and the Company Subsidiaries and (y) each of Columbia Blocker and TKH Blocker may prior to the Effective Time accept capital contributions from or issue additional shares of capital stock to, respectively, the Columbia Seller and the TKH Sellers, the proceeds of which are used for the working capital needs of, respectively, Columbia Blocker and TKH Blocker, including their further investment in the Ordinary Course of Business)Company;
(iii) except as required pursuant to effect any recapitalization, reclassification, stock split or like change in the terms of any Seller Plan in effect on the date hereof and set forth on Section 5.18(a) capitalization of the Disclosure Schedule Company, the Company Subsidiaries, Columbia Blocker or any agreements to pay Compensatory Amounts set forth on Section 5.18(aTKH Blocker;
(iv) amend the Organizational Documents of the Disclosure Schedule Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker;
(which shall be treated as an Excluded Liability)v) hire any employee or consultant not terminable at will without penalty on or before the Closing Date, (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 level of 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 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 the preparation of its most recent Tax Returnstheir respective consultants;
(vi) incur or assume any Indebtedness, provided that, upon prior written notice to Parent, the Company and the Company Subsidiaries may prior to the Effective Time, incur Indebtedness to Columbia Blocker, TKH Blocker and Persons who are Sellers as of the date hereof, the proceeds of which are used for the working capital needs of the Company and the Company Subsidiaries;
(vii) other than with respect to the WCS Spectrum Licenses (for which clause (ix) below is applicable), subject to any Lien or otherwise encumber or or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible) ), or any shares of capital stock of the SellersCompany, the Company Subsidiaries, Columbia Blocker or TKH Blocker;
(viii) acquire any material properties or assets or, other than Permitted Liens in with respect to the Ordinary Course WCS Spectrum Licenses (for which clause (ix) below is applicable), sell, assign, license, transfer, convey, lease or otherwise dispose of Business any other of their respective material properties or which are otherwise released in connection with the Bankruptcy Cases and the Sale Orderassets or those of either Company Subsidiary;
(viiix) other than in connection herewith or pursuant to the transactions contemplated by the XM Agreement, (A) sell, transfer, assign, lease, dispose of, grant an option in, grant a right of first refusal with respect to, grant a right of first offer with respect to, or dispose of, or offer to, or discuss or enter into any agreement, arrangement or understanding to, sell, transfer, assign, lease, dispose of, grant an option in, grant a right of first refusal with respect to, grant a right of first offer with respect to, or dispose of any of the WCS Spectrum Licenses, or any interest therein, or negotiate therefor, or (B) create, incur or suffer to exist any Lien of any nature whatsoever relating to any of the WCS Spectrum Licenses or any interest therein or incur any obligation or liability, absolute or contingent, relating to or affecting any of the WCS Spectrum Licenses or their use;
(x) except as set forth on Schedule 7.2(b)(x), enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities of any other Person;
(viiixi) cancel or compromise any material debt or claim or waive or release any material right except in the Ordinary Course of Business;
(xii) enter into any commitment for capital expenditures expenditures, in the case of the Company and the Company Subsidiaries, in excess of $25,000 20,000 for any individual commitment and $50,000 100,000 for all commitments in the aggregate;
(ixxiii) negotiate, enter into any transaction or to enter into, modify or terminate renew any labor Contract , other than immaterial contracts that can be cancelled by the Company, Columbia Blocker, TKH Blocker or collective bargaining either Company Subsidiary, as applicable, on thirty (30) days notice or less, without any penalty or continued liability, and other than an agreement or recognize or certify any labor union, labor organization, works council, or group providing for the payment to ▇▇▇▇▇ of employees as the bargaining representative for any employees, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization▇▇▇▇▇ Bonus Amount;
(Axiv) implement any employee layoffs that could implicate the WARN Act or (B) hire, engage or terminate (without cause) the employment except for transfers of any employee with annual compensation in excess of $150,000;
(xi) release, assign, compromise, settle or agree cash pursuant to settle any Action, other than compromises, settlements or agreements to settle Actions that involve only the payment of money damages not in excess of $25,000 individually or $100,000 in the aggregate;
(xii) other than normal cash management practices in the Ordinary Course of Business, accelerate make any investments in or loans to, or pay any fees or expenses to (other than pursuant to existing Contracts), or enter into or materially modify any Contract with any Affiliate of the collection Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker or any director, officer or employee of any Accounts Receivable or other payment (including by offering or promoting discounts or rebates outside of the Ordinary Course of Business)such Persons;
(xiiixv) 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, settle any Tax claim or assessment or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling;
(xvi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of the Sellers any Subsidiary to compete with or conduct any business or line of business in any geographic area;
(xiv) make area or enter into, modify, amend or terminate any changes in its financial accounting methodsContract which if so entered into, except insofar as may modified, amended or terminated would be reasonably be expected to have been required by (i) applicable Law or (ii) a change in GAAP;
(xv) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Owned Intellectual Property (other than (x) in the Ordinary Course of Business, (y) non-exclusive licenses granted to third Persons in the Ordinary Course of Business, or (z) with respect to immaterial or obsolete Intellectual Property);
(xvi) amend the organizational documents of any SellerMaterial Adverse Effect;
(xvii) make terminate, amend, restate, supplement or waive any expenditure related rights under any Contract, or Permit that would reasonably be expected to have a Material Adverse Effect;
(xviii) fail to promptly pay and discharge current liabilities expect where disputed in good faith by appropriate proceedings, or accelerate the collection of any accounts receivable;
(xix) enter into any settlement agreement or stipulation in connection with any Legal Proceeding described in Section 7.2(a)(x) without the Excluded Businessprior written consent of Parent, which consent will not be unreasonably withheld, conditioned or delayed; orand
(xviiixx) agree to do anything prohibited by this Section 8.27.2.
(c) Subject to the provisions of Section 4.4, the Company shall no later than July 3, 2006 withdraw from the FCC its application for the FCC’s consent to the transfer of control of the WCS Spectrum Licenses to XM (FCC File No. 0002240823).
Appears in 1 contract