Conduct Prior to Closing. From the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to: (a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associates; (b) maintain its books of account and records consistent with its past practice in all material respects; (c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital; (d) not declare or pay any dividends on or make other distributions in respect of any of its share capital; (e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; (f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiary; (g) not incur any Indebtedness; (h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate; (i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity; (j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment; (k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; (l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction); (m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement; (n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property; (o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right; (p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person; (q) not change its accounting practices, except as required by U.S. GAAP; (r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations; (s) not commit to take any of the actions set forth in subsections (c)-(r) of this Section 6.5.
Appears in 1 contract
Sources: Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Agreement until and the earlier Closing Date, Seller will not without the prior written consent of Closing or Purchaser, to the termination of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of extent related to the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries toAcquired Business:
(a) conduct its businesses in take any action to impair, encumber or create a Lien (other than Permitted Liens) against the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books other than for Contracts entered into in the Ordinary Course of account and records consistent Business, buy, or enter into any inbound license agreement with its past practice respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in all material respectsor used in connection with the Acquired Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) not other than for Contracts entered into in the Ordinary Course of Business, enter into any Contract relating to (i) amend its Organizational Documents other than amendments which are ministerial in nature; the sale or distribution of any Product, (ii) split, combine or reclassify its outstanding share capital; the provision of any services or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalthe Acquired Assets;
(d) not declare change pricing or pay any dividends on royalties charged to customers or make other distributions in respect licensees of any the Acquired Business if such changes would require approval at a the level of its share capitalproduct line manager or greater;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment strategic arrangement or severance agreements relationship, joint venture, development or arrangements (except as may be required by joint marketing arrangement or agreement relating to the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementAcquired Business;
(f) not issue, sellamend or modify, or dispose of any shares violate the terms of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights any of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company SubsidiaryAssumed Contracts;
(g) not incur revalue any Indebtednessof the Acquired Assets, including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable, other than in the Ordinary Course of Business and in a manner consistent with past practice;
(h) other than as set forth on Schedule 6.5(h) of to the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 extent that doing so would adversely impact the Acquired Business in the aggregate;
(i) not make any acquisition ofhands of Purchaser, or investment inthe Products and the Acquired Assets , assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (election in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course respect of business, change an annual accounting periodTaxes, adopt or change any accounting method with in respect to of Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, or take any other similar action in each case relating to the filing Acquired Business, the Products and the Acquired Assets;
(i) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Acquired Business;
(j) take any Tax Return action, or fail to take any action, which would intentionally result in any of the payment representations and warranties set forth in Article V not being true and correct in all material respect on and as of any Taxthe Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;
(k) file a petition in bankruptcy, make an assignment for the benefit of creditors or file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws; or
(l) except as set forth take, or agree in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections Section 7.3(a) through (c)-(rk) of this Section 6.5above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date (except with respect to the Acquired Assets to be transferred under the Indian Asset Purchase Agreement, for which this Section 7.3 shall survive from the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 closing of the Disclosure SchedulesIndian Asset Purchase Agreement), (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shallSeller will not, and Sellers shall cause the Company and each Seller will not permit any of the Company its Subsidiaries to, without the prior written consent of Purchaser, to the extent related to the Acquired Business:
(a) conduct its businesses in take any action to impair, encumber or create a Lien (other than Permitted Liens) against the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books other than for Contracts entered into in the Ordinary Course of account and records consistent Business, buy, or enter into any inbound license agreement with its past practice respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in all material respectsor used in connection with the Acquired Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) not other than for Contracts entered into in the Ordinary Course of Business, enter into any Contract relating to (i) amend its Organizational Documents other than amendments which are ministerial in nature; the sale or distribution of any Product, (ii) split, combine or reclassify its outstanding share capital; the provision of any services or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalthe Acquired Assets;
(d) not declare change pricing or pay any dividends on royalties charged to customers or make other distributions in respect licensees of any the Acquired Business if such changes would require approval at a the level of its share capitalproduct line manager or greater;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment strategic arrangement or severance agreements relationship, joint venture, development or arrangements (except as may be required by joint marketing arrangement or agreement relating to the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementAcquired Business;
(f) not issue, sellamend or modify, or dispose of any shares violate the terms of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights any of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company SubsidiaryAssumed Contracts;
(g) not incur revalue any Indebtednessof the Acquired Assets, including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable, other than in the Ordinary Course of Business and in a manner consistent with past practice;
(h) other than as set forth on Schedule 6.5(h) of to the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 extent that doing so would adversely impact the Acquired Business in the aggregate;
(i) not make any acquisition ofhands of Purchaser, or investment inthe Products and the Acquired Assets , assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (election in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course respect of business, change an annual accounting periodTaxes, adopt or change any accounting method with in respect to of Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, or take any other similar action in each case relating to the filing Acquired Business, the Products and the Acquired Assets;
(i) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Acquired Business;
(j) take any Tax Return action, or fail to take any action, which would intentionally result in any of the payment representations and warranties set forth in Article V not being true and correct in all material respect on and as of any Taxthe Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;
(k) file a petition in bankruptcy, make an assignment for the benefit of creditors or file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws; or
(l) except as set forth take, or agree in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections Section 7.3(a) through (c)-(rk) of this Section 6.5above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. From the date of this Agreement until the earlier of Closing or the termination of this Agreement, except as Except (i) as otherwise expressly required or provided hereinpermitted by this Agreement, (ii) set forth in Schedule 6.5 with the prior written consent of the Disclosure SchedulesBuyer, or (iii) as required by applicable Law or Governmental Entity law, or (iv) consented to as detailed in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each Section 5.3 of the Company Subsidiaries toDisclosure Schedule, during the Pre-Closing Period, Seller will not:
(a) conduct its businesses in settle any pending Legal Proceedings or obtain any releases of threatened Legal Proceedings involving or related to the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesBusiness;
(b) maintain its books of account and records consistent with its past practice in all material respectscommence or settle any litigation involving or related to the Business;
(c) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article 3 not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares being true and correct on and as of its share capital or any securities convertible into or exchangeable or exercisable for any shares the Closing Date with the same force and effect as if such representations and warranties had been made on and as of its share capitalthe Closing Date;
(d1) not declare increase the compensation or pay benefits payable or to become payable to any dividends on Employee, or make other distributions (2) establish, adopt, enter into, amend in any material respect or terminate any Employee Plan; provided, however, that the Seller may take any such action to the extent required by the terms of any of its share capitalan existing Contract or Employee Plan;
(e) with respect sell, assign, license, lease, transfer or convey the Purchased Assets or commit itself to any present sell, assign, license, lease, transfer or former, director, officer or employee of convey the Company, not (i) enter into any employment or severance agreements or arrangements (Purchased Assets except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sellsuffer any Lien (other than the Permitted Liens) on, or dispose of any shares damage or destruction or loss of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company Purchased Asset (except for ordinary wear and any wholly-owned Company Subsidiarytear);
(g) not incur enter into, terminate or amend, any IndebtednessContract with any customer, supplier, lease, reseller or distributor agreement relating to the Business, the Products or the Purchased Assets, except for the Terminated Contracts;
(h) other than as set forth on Schedule 6.5(h) waive, cancel, compromise or release any rights or claims of the Disclosure Schedulesmaterial value, whether or not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(li) except take any action, or fail to take any action within its reasonable control, as set forth in Schedule 6.5(l) a result of which any of the Disclosure Schedules, not adopt a plan of complete changes or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);events listed in Section 3.5 would occur; or
(mj) other than as set forth take, or agree in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections (c)-(rSections 5.3(a) of through Section 5.3(i) hereof, or any other action that would prevent Seller from performing, or cause Seller not to perform, its covenants or obligations under this Section 6.5Agreement.
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by ------------------------ this Agreement, between the date of this Agreement until and the earlier of (i) the Closing or Date and (ii) the termination of this Agreement, except Seller will not take any action as a result of which any of the changes or events described in Section 5.20 of this Agreement would likely or foreseeably occur. In addition, ------------ between -25- the date of this Agreement and the earlier of (i) otherwise expressly required or provided herein, the Closing Date and (ii) set forth in Schedule 6.5 the termination of this Agreement, Seller will not, without the Disclosure Schedulesprior written consent of Parent or Buyer, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in take any action to materially impair, encumber, or create a Lien against the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books of account and records consistent except to comply with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine existing contractual obligations or reclassify its outstanding share capital; commitments or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter non-exclusive licenses entered into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other propertybuy, or (iv) establishenter into any inbound license agreement with respect to, adoptThird Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter intointo any outbound license agreement with respect to, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementAcquired Assets with any third party;
(fc) not issue, sell, except to comply with existing contractual obligations or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind with respect to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any whollynon-owned Company Subsidiary;
(g) not incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 exclusive licenses entered into in the aggregate;
(i) not make ordinary course of business consistent with past practice, enter into any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow Contract relating to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing distribution of any Tax Return or the payment of any Tax;
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respectProduct, (ii) fail to renew or terminate any Material Contract of the Acquired Assets, or (iii) any Licensed Intellectual Property (subject to Section 7.2(g) above); --------------
(d) change pricing or royalties charged to customers or licensees of the Acquired Assets;
(e) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the date Acquired Assets; (f) fire, or give notice of this Agreement;
(n) not subject to termination to, any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practicesDesignated Employee, except as required by U.S. GAAP;
permitted under the terms of that certain Funding Agreement between Buyer and Seller of even date herewith (r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth in subsections (c)-(r) of this Section 6.5."Funding Agreement"); -----------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Palm Inc)
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Agreement until and the earlier of (i) the Closing or Date and (ii) the termination of this Agreement, except Seller will not take any action as a result of which any of the changes or events described in Section 5.20 of this Agreement would likely or foreseeably occur. In addition, between the date of this Agreement and the earlier of (i) otherwise expressly required or provided herein, the Closing Date and (ii) set forth in Schedule 6.5 the termination of this Agreement, Seller will not, without the Disclosure Schedulesprior written consent of Parent or Buyer, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in take any action to materially impair, encumber, or create a Lien against the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books of account and records consistent except to comply with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine existing contractual obligations or reclassify its outstanding share capital; commitments or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter nonexclusive licenses entered into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) except to comply with existing contractual obligations or commitments or with respect to nonexclusive licenses entered into in the ordinary course of business consistent with past practice, enter into any Contract relating to (i) the sale or distribution of any Product, (ii) any of the Acquired Assets, or (iii) loan any Licensed Intellectual Property (subject to Section 7.2(g) above);
(d) change pricing or advance any money royalties charged to customers or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as licensees of the date of this AgreementAcquired Assets;
(e) enter into any strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the Acquired Assets;
(f) not issue, sellfire, or dispose give notice of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquiretermination to, any shares Designated Employee, except as permitted under the terms of its share capital, other than any issuance, sale or disposal, solely that certain Funding Agreement between Buyer and Seller of even date herewith (the Company and any wholly-owned Company Subsidiary"Funding Agreement");
(g) not incur amend or modify, except to the extent required by the terms thereof, or violate the terms of, any Indebtednessof the Transferred Contracts;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with in respect to of Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, or take any other similar in each case where such action relating to the filing of any Tax Return or the payment of any Tax;would reasonably have a Material Adverse Effect; and
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract agree in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections Sections 7.3(a) through (c)-(rh) of this Section 6.5above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Be Inc)
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Company hereunder, and in the case of (d) to (m) except without the prior written consent of the Investor, during the period from the date of this Agreement until hereof to the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayedTime, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries Subsidiary to:
(a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use all commercially reasonable efforts to preserve its business organization intact the Business and maintain its existing relations the property, assets, operations and goodwill with customers, suppliers, creditors, lessors, employees affairs of the Company and business associatesthe Subsidiary and to carry on the Business and the affairs of the Company and the Subsidiary in the ordinary course of business;
(b) maintain its books pay and discharge the liabilities of account the Company and records consistent with its past practice the Subsidiary in all material respectsthe ordinary course of business;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial continue to maintain in nature; (ii) split, combine full force and effect all policies of insurance or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares renewals thereof now in effect and give all notices and present all claims under all policies of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalinsurance in a due and timely fashion;
(d) not declare increase the compensation of employees generally or pay increase salary or bonus payable to any dividends on existing officer, director, employee, consultant or make other distributions in respect agent of any of its share capitalthe Company or the Subsidiary;
(e) with respect not declare or pay any dividend or make any other form of distribution or return of capital to any present or former, director, officer or employee of the Company, its shareholders; Legal*7415880.1
(f) not (i) enter into any employment Contract or severance agreements or arrangements (agreement with any Related Party of the Company except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiarybusiness;
(g) not incur any Indebtednessincrease borrowings except in the ordinary course of business;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not establish any new employee stock option plan or make any amendments or commitments to improve or otherwise amend any employee stock option plan, except as required by applicable Laws and except to increase the number of options available for or make capital expenditures grant under any employee stock option plan in excess of US$500,000 in the aggregateaccordance with applicable Law;
(i) not enter into any material supply arrangements or make any acquisition of, material decisions or investment in, assets or share interests of enter into any other Person or entity;
(j) not sell, assign, lease, license, allow Material Contracts with respect to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Propertythe Business, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than those entered into in the ordinary course of business, change an annual accounting periodwhich includes, adopt or change any accounting method without limitation, all Contracts entered into in connection with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver the development of the limitation period applicable to Kami Project, and as contemplated in the Transaction Agreements;
(j) not split, consolidate or reclassify any Tax claim of the Common Shares in the capital of the Company or assessment, or take the Subsidiary nor undertake any other similar action relating capital reorganization;
(k) not issue any securities of the Company, other than in accordance with the exercise of Acquisition Rights held by Persons, and not issue Acquisition Rights, except for compensatory purposes to directors, officers, employees of or consultants to the filing Company pursuant to compensation arrangements, provided that if PRC Approvals have not been obtained by the 90th day following the date of any Tax Return or this Agreement, the payment of any TaxCompany may complete a bona fide equity financing subject to Section 2.2(d);
(l) except as set forth in Schedule 6.5(l) not redeem, purchase or arrange to purchase any securities of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);Company; and
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to transaction or refrain from doing any action which, if effected before the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations would constitute a breach of any other Person representation or make warranty of the Company hereunder, and not take any loan, advance or capital contribution to or investment action which would result in any Person;
(q) not change its accounting practicesrepresentation or warrant in any other Transaction Agreement being incorrect or any covenant of a Venture Entity or the Company in any other Transaction Agreement being in breach, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose in each case upon the execution of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth in subsections (c)-(r) of this Section 6.5such agreements.
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Existing Agreement until Date and the earlier of (i) the Closing or Date and (ii) the termination of this Agreement, except Seller will not take any action as a result of which any of the changes or events described in Section 5.20 of this Agreement would likely or foreseeably occur. In addition, between the Existing Agreement Date and the earlier of (i) otherwise expressly required or provided herein, the Closing Date and (ii) set forth in Schedule 6.5 the termination of this Agreement, Seller will not, without the Disclosure Schedulesprior written consent of Parent or Buyer, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct its businesses in take any action to materially impair, encumber, or create a Lien against the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books of account and records consistent except to comply with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine existing contractual obligations or reclassify its outstanding share capital; commitments or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) with respect to any present or former, director, officer or employee of the Company, not (i) enter non-exclusive licenses entered into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) except to comply with existing contractual obligations or commitments or with respect to non-exclusive licenses entered into in the ordinary course of business consistent with past practice, enter into any Contract relating to (i) the sale or distribution of any Product, (ii) any of the Acquired Assets, or (iii) loan any Licensed Intellectual Property (subject to Section 7.2(g) above);
(d) change pricing or advance any money royalties charged to customers or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as licensees of the date of this AgreementAcquired Assets;
(e) enter into any strategic arrangement or relationship, development or joint marketing arrangement or agreement relating to the Acquired Assets;
(f) not issue, sellfire, or dispose give notice of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquiretermination to, any shares Designated Employee, except as permitted under the terms of its share capital, other than any issuance, sale or disposal, solely that certain Funding Agreement between Buyer and Seller of even date herewith (the Company and any wholly-owned Company Subsidiary"Funding Agreement");
(g) not incur amend or modify, except to the extent required by the terms thereof, or violate the terms of, any Indebtednessof the Transferred Contracts;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with in respect to of Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, or take any other similar in each case where such action relating to the filing of any Tax Return or the payment of any Tax;would reasonably have a Material Adverse Effect; and
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract agree in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections Sections 7.3(a) through (c)-(rh) of this Section 6.5above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Be Inc)
Conduct Prior to Closing. From the date of this Agreement until the Closing (or until the earlier of Closing or the termination of this AgreementAgreement in accordance with its terms), except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity with the consent in writing of Purchaser, Seller Parties shall use, own and operate the Assets in the Ordinary Course of Business and shall use reasonable best efforts to maintain and to preserve the rights, franchises, goodwill and relationships with Persons having business relationships with Seller Parties in relation to the Assets. Without limiting the generality of the foregoing, except as required by applicable Law or (iv) set forth on Section 4.1 of the Disclosure Schedule or as consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and (which consent shall not be unreasonably withheld), conditioned or delayed, the Company shall, and Sellers Seller Parties shall cause the Company and each of the Company Subsidiaries tonot:
(a) conduct its businesses fail to maintain the Assets in the ordinary and usual course in substantially same condition as on the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesdate hereof;
(b) maintain its books enter into any new Contract affecting any of account and records consistent with its past practice in all material respectsthe Assets or Assumed Liabilities;
(c) not (i) amend its Organizational Documents make any capital improvements or other than amendments which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalmodifications to the S▇▇▇▇▇ Road Real Property except as required to comply with Monterey County regulations;
(d) not declare modify, assign, terminate or pay waive any dividends on rights under the AT&T Agreement or make other distributions in respect of any of its share capitalthe Razzolink Lease;
(e) with respect to any present sell, lease, transfer or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms otherwise dispose of any employment agreements existing Assets or create or permit the creation of any Lien on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementAssets;
(f) not issueinstitute, sellsettle, waive or dispose of release any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind Action with respect to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company SubsidiaryAssets;
(g) not incur issue, create, incur, assume or guarantee any IndebtednessIndebtedness of any Seller Entity (other than Indebtedness to be discharged at the Closing) or any Lien on any of the Assets;
(h) other than as set forth on Schedule 6.5(h) cancel or permit the lapse of any insurance policy covering the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregateAssets;
(i) not make adopt any acquisition ofplan of merger, consolidation, reorganization, liquidation, or investment indissolution, assets or share interests file a petition in bankruptcy under any provisions of any other Person federal or entitystate bankruptcy Law involving Seller Entities;
(j) not selltransfer, assign, lease, license, allow to expire assign or lapse, encumber grant any license or otherwise dispose sublicense of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory material rights under or (ii) the disposition of used or excess equipment;with respect to any Seller Entity IP; or
(k) not make contract, commit or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect agree to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth in subsections (c)-(r) of this Section 6.5foregoing.
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Agreement until and the earlier Closing Date, DTI Holdings and Seller will not take any action, or fail to take any action, as a result of Closing which any of the changes or the termination events described in Section 5.7 of this AgreementAgreement would occur. In addition, except as (i) otherwise expressly required DTI Holdings and Seller will not, without the prior written consent of Parent or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries toBuyer:
(a) conduct its businesses in take any action to impair, encumber, create a Lien against or otherwise adversely affect the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of account and records consistent any third party to be incorporated in or used in connection with its past practice in all material respectsthe Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets with any third party;
(c) not (i) amend its Organizational Documents propose or enter into a Contract with any person, other than amendments which are ministerial in nature; Buyer, providing for the possible acquisition, transfer or disposition (iiwhether by way of merger, purchase of capital stock, purchase of assets or otherwise) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital the Business or any securities convertible into or exchangeable or exercisable for any shares of its share capitalthe Acquired Assets;
(d) not declare enter into any Contract relating to (i) the sale or pay any dividends on or make other distributions in respect distribution of any Product (other than for Contracts entered into in the Ordinary Course of its share capitalBusiness), (ii) the provision of any services (other than for Contracts entered into in the Ordinary Course of Business) or (iii) any of the Acquired Assets (other than those Contracts permitted to be entered into without the prior written consent of Parent or Buyer pursuant to subsections (i) or (ii) of this Section 8.3(d));
(e) with respect other than in the Ordinary Course of Business, change pricing or royalties charged to any present customers or former, director, officer or employee licensees of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementBusiness;
(f) not issueenter into any strategic arrangement or relationship, selljoint venture, development or dispose of any shares of, joint marketing arrangement or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind agreement relating to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company SubsidiaryBusiness;
(g) not incur terminate, or give notice of termination to, any IndebtednessDesignated Employee;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregateOrdinary Course of Business, hire any employees relating to the Business;
(i) not make change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any acquisition of, or investment in, assets or share interests other terms of employment of any other Person Designated Employee (whether payable in cash, equity compensation or entityotherwise);
(j) not sellgrant any severance or termination pay to any Designated Employee (whether payable in cash, assignequity compensation or otherwise), leaseor adopt any new severance plan, licenseamend or modify or alter in any manner any severance plan, allow agreement or arrangement relating to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) Designated Employee on the sale of inventory or (ii) the disposition of used or excess equipmentdate hereof;
(k) not adopt or amend any Employee Plan, or enter into any Employee Contract;
(l) amend or modify, or violate the terms of, any of the Transferred Contracts;
(m) revalue any of the Acquired Assets;
(n) make or change any Tax election, unless required by Law (election in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course respect of business, change an annual accounting periodTaxes, adopt or change any accounting method with in respect to of Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, or take any other similar action in each case relating to the filing of any Tax Return or Business, the payment of any Tax;
(l) except as set forth in Schedule 6.5(l) of Products and the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual PropertyAcquired Assets;
(o) not cancel commence or compromise settle any debt Actions or claim in excess Proceedings or obtain any releases of US$150,000 threatened Actions or waive Proceedings involving or release any material rightrelating to the Business;
(p) not assumetake any action, guaranteeor fail to take any action, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment which would result in any Personof the representations and warranties set forth in Article V not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date;
(q) not change its accounting practicesexcept for the issuance of shares of DTI Holdings Common Stock upon exercise of presently outstanding options or warrants to purchase such stock, except as required by U.S. GAAPissue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any shares of capital stock of DTI Holdings or Seller or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such shares or other convertible securities;
(r) not settle declare, set aside or compromise pay any litigationdividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or releasesplit, dismiss combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchase, redeem or otherwise dispose acquire, directly or indirectly, any shares of any claim its capital stock (or arbitrationoptions, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive warrants or other non-monetary relief or impose restrictions on its business or operations;rights exercisable therefor); or
(s) not commit take, or agree in writing or otherwise to take take, any of the actions set forth described in subsections Sections 8.3(a) through (c)-(rr) above, or any other action that would prevent DTI Holdings or Seller from performing or cause either of this Section 6.5DTI Holdings or Seller not to perform its covenants hereunder.
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, without the prior written consent of Purchaser between the date of this Agreement until and the Closing Date (or earlier of Closing or the termination of this Agreement), except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly Sellers and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries toSeller Owner will not:
(a) conduct its businesses in enter into any (i) inbound license agreement with respect to the ordinary and usual course in substantially Intellectual Property rights of any third party, other than shrink-wrap code or (ii) outbound license agreement with respect to any of the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesSeller’s Intellectual Property or Seller’s Technology;
(b) maintain its books settle any pending Legal Proceedings or obtain any releases of account and records consistent with its past practice in all material respectsthreatened Legal Proceedings involving or related to the Business;
(c) not undertake any expenditure, transaction or commitment exceeding $5,000 individually or $10,000 in the aggregate (i) amend its Organizational Documents other than amendments capital expenditures for which are ministerial in nature; (ii) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalpayment is fully made prior to the Closing);
(d) not declare enter into (i) any Contract of the type described in Section 3.13 or pay Section 4.10, or (ii) any dividends on new employment agreement or make modify any existing employment agreement (other distributions in than to remove any change of control or severance provisions) with respect of any of its share capitalto GRA;
(e) with respect incur or guarantee any Debt involving or related to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this AgreementBusiness;
(f) not issuefile a petition in bankruptcy, sell, make an assignment for the benefit of creditors or dispose of any shares of, file a petition seeking reorganization or securities convertible into arrangement or exchangeable other action under federal or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiarystate bankruptcy laws;
(g) not incur enter into any Indebtednessagency, partnership, joint venture or trust;
(h) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other than as set forth on Schedule 6.5(h) of the Disclosure Schedulesmanner, not make any commitments for business or make capital expenditures in excess of US$500,000 in the aggregateany corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or any equity securities;
(i) not make terminate, renew or amend or modify any acquisition of, or investment in, assets or share interests of any other Person or entityagreements with respect to the Purchased Assets;
(j) not sell, assign, license, lease, transfer, convey or pledge the Acquired Assets or commit itself to sell, assign, license, allow to expire lease, transfer, convey or lapse, encumber pledge the Acquired Assets or otherwise dispose of subject any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipmentAcquired Assets to a security interest;
(k) not make enter into any agreement to purchase or change sell any Tax electioninterest in real property, unless required by Law (grant any security interest in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Returnreal property, enter into any closing agreementlease, settle sublease, license or compromise any proceeding other occupancy agreement with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Taxreal property;
(l) except as set forth in Schedule 6.5(l) revalue any of the Disclosure Schedules, not adopt a plan Acquired Assets including writing down the value of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction)inventory;
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend approve or modify waive any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior rights with respect to the date issuance of this Agreementany GRA equity or sell any equity interests in GRA;
(n) not subject cause or approve GRA to any Encumbrance do any of its properties or assets, including Intellectual Property;the foregoing; or
(o) not cancel take, or compromise any debt or claim agree in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections (c)-(rSections 6.9(a)-(n) of this Section 6.5above.
Appears in 1 contract
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Company hereunder, and in the case of (d) to (m) except without the prior written consent of the Investor, during the period from the date of this Agreement until hereof to the earlier of Closing or the termination of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayedTime, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries Subsidiary to:
(a) conduct its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use all commercially reasonable efforts to preserve its business organization intact the Business and maintain its existing relations the property, assets, operations and goodwill with customers, suppliers, creditors, lessors, employees affairs of the Company and business associatesthe Subsidiary and to carry on the Business and the affairs of the Company and the Subsidiary in the ordinary course of business;
(b) maintain its books pay and discharge the liabilities of account the Company and records consistent with its past practice the Subsidiary in all material respectsthe ordinary course of business;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial continue to maintain in nature; (ii) split, combine full force and effect all policies of insurance or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares renewals thereof now in effect and give all notices and present all claims under all policies of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalinsurance in a due and timely fashion;
(d) not declare increase the compensation of employees generally or pay increase salary or bonus payable to any dividends on existing officer, director, employee, consultant or make other distributions in respect agent of any of its share capitalthe Company or the Subsidiary;
(e) with respect not declare or pay any dividend or make any other form of distribution or return of capital to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreementits shareholders;
(f) not issue, sell, enter into any Contract or dispose agreement with any Related Party of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiaryexcept in the ordinary course of business;
(g) not incur any Indebtednessincrease borrowings except in the ordinary course of business;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not establish any new employee stock option plan or make any amendments or commitments to improve or otherwise amend any employee stock option plan, except as required by applicable Laws and except to increase the number of options available for or make capital expenditures grant under any employee stock option plan in excess of US$500,000 in the aggregateaccordance with applicable Law;
(i) not enter into any material supply arrangements or make any acquisition of, material decisions or investment in, assets or share interests of enter into any other Person or entity;
(j) not sell, assign, lease, license, allow Material Contracts with respect to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Propertythe Business, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than those entered into in the ordinary course of business, change an annual accounting periodwhich includes, adopt or change any accounting method without limitation, all Contracts entered into in connection with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver the development of the limitation period applicable to Kami Project, and as contemplated in the Transaction Agreements;
(j) not split, consolidate or reclassify any Tax claim of the Common Shares in the capital of the Company or assessment, or take the Subsidiary nor undertake any other similar action relating capital reorganization;
(k) not issue any securities of the Company, other than in accordance with the exercise of Acquisition Rights held by Persons, and not issue Acquisition Rights, except for compensatory purposes to directors, officers, employees of or consultants to the filing Company pursuant to compensation arrangements, provided that if PRC Approvals have not been obtained by the 90th day following the date of any Tax Return or this Agreement, the payment of any TaxCompany may complete a bona fide equity financing subject to Section 2.2(d);
(l) except as set forth in Schedule 6.5(l) not redeem, purchase or arrange to purchase any securities of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);Company; and
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to transaction or refrain from doing any action which, if effected before the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations would constitute a breach of any other Person representation or make warranty of the Company hereunder, and not take any loan, advance or capital contribution to or investment action which would result in any Person;
(q) not change its accounting practicesrepresentation or warrant in any other Transaction Agreement being incorrect or any covenant of a Venture Entity or the Company in any other Transaction Agreement being in breach, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose in each case upon the execution of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth in subsections (c)-(r) of this Section 6.5such agreements.
Appears in 1 contract
Sources: Subscription Agreement (Hebei Iron & Steel Group Co., Ltd.)
Conduct Prior to Closing. From Within the date of this Agreement until four (4) months prior to the earlier of Closing Date or on the termination of this AgreementClosing Date, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 Section 4.37 of the Disclosure SchedulesSchedule, (iii) required by applicable Law or Governmental Entity or (iv) consented to Seller has conducted its business only in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shallordinary course, and Sellers shall cause the Company and each of the Company Subsidiaries toSeller has not:
(a) conduct issued, sold or delivered any shares of its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts capital stock or issue or sell any securities convertible into, or options with respect to, or warrants to preserve purchase or rights to subscribe to, any shares of its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatescapital stock;
(b) maintain its books of account and records consistent with its past practice effected any recapitalization, reclassification, stock dividend, stock split or like change in all material respectscapitalization;
(c) not (i) amend amended its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine articles of incorporation or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalby-laws;
(d) not declare merged or pay any dividends on consolidated with, or, except as a result of foreclosure or make other distributions repossession in respect of any the ordinary course of its share capitalmortgage banking business, acquired substantially all of the assets of, any other entity;
(e) with respect sold, transferred, leased or encumbered a material amount of assets (other than Excluded Assets) except in the ordinary course of business;
(f) materially altered or varied its methods or policies of (i) underwriting, pricing, originating, warehousing, selling and servicing, or buying or selling rights to service, its Mortgage Loans, (ii) hedged (which term includes both buying futures and forward commitments from financial institutions) its mortgage loan positions or commitments, and (iii) obtained financing and credit;
(g) granted to any present director, officer, employee or formerconsultant any material increase in compensation or benefits (other than as may be required under the terms of written agreements in effect on the date hereof and other than normal increases made in the ordinary course of business to officers or employees in accordance with customary past practices and policies);
(h) granted any severance or termination pay (other than as may be required under the terms of written agreements in effect on the date hereof) to, or entered into or amended any employment or severance agreement with, any person, other than termination pay paid in the ordinary course of business to officers or employees in accordance with customary past practices and policies;
(i) adopted any new or amended any existing director, officer or employee benefit plans (including, without limitation, profit sharing, bonus, director and officer incentive compensation, retirement, medical, hospitalization, life or other insurance plans, arrangements and commitments) or any trust agreement relating thereto;
(j) incurred any debt other than in the ordinary course of the Companybusiness in amounts consistent with past practice;
(k) made any change in accounting principles or methods from those currently employed, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof GAAP or by applicable Law)regulatory requirements;
(l) granted any mortgage or security interest in, (ii) increase compensation or benefits (except for increases in salary made any pledge of, or hourly wage ratespermitted any lien or encumbrance to be placed on, any of its assets or properties other than in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiary;
(g) not incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) canceled, waived, released or compromised any material debt or claim, other than as set forth upon payment in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreementfull;
(n) not subject failed to any Encumbrance any of its properties or assets, including Intellectual Propertymaintain in full force and effect all existing insurance policies and fidelity bonds;
(o) To the best of Seller's knowledge, taken any action, or failed to take any action, that would result in a material breach or violation of the representations and warranties of Seller contained in this Agreement or caused any condition to the transactions contemplated hereby not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material rightto be satisfied;
(p) not assumeaccelerated, guaranteeterminated, endorse modified or otherwise become liable canceled any material contract, lease, or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution license to or investment in any Personwhich Seller is a party;
(q) not change its accounting practicesentered into any employment or collective bargaining agreement, except as required by U.S. GAAP;or modified any existing employment or collective bargaining agreement; and
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that agreed to do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth foregoing included in subsections (c)-(ra) of this Section 6.5through (q).
Appears in 1 contract
Conduct Prior to Closing. From Except as otherwise expressly permitted by this Agreement, between the date of this Agreement until and the earlier Closing Date, the Seller will not, and will not cause or permit the other Members to, take any action, or fail to take any action, as a result of Closing which any of the changes or the termination events described in Section 4.6 of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayedAgreement would occur. In addition, the Company shallSeller will not, and Sellers shall will not cause or permit the Company and each other Members to, without the prior written consent of the Company Subsidiaries toBuyer:
(a) conduct its businesses except in the ordinary and usual course Ordinary Course of Business, buy, or enter into any inbound license agreement with respect to, Third Party Technology or the Intellectual Property Rights of any third party to be incorporated in substantially or used in connection with the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with customersrespect to, suppliers, creditors, lessors, employees and business associatesany of the Acquired Assets with any third party;
(b) maintain its books of account and records consistent with its past practice in all material respects;[Intentionally Omitted]
(c) not except in the Ordinary Course of Business, enter into any material Contract relating to (i) amend its Organizational Documents other than amendments which are ministerial in nature; the sale or distribution of any Product, (ii) splitthe provision of any services, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem any of the Acquired Assets or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalAcquired Subsidiaries;
(d) not declare enter into any strategic arrangement or pay any dividends on relationship, joint venture, development or make other distributions in respect of any of its share capitaljoint marketing arrangement or agreement relating to the Business;
(e) with respect terminate, or give notice of termination to, any Business Employee, other than (1) Business Employees who have been given notice of termination prior to the date hereof, and (2) those Business Employees listed on Schedule 6.4(e);
(f) except in the Ordinary Course of Business, hire any present employees relating to the Business, other than employees who have received an offer of employment from a Member prior to the date hereof;
(g) change, increase or formeramend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Business Employee (whether payable in cash, directorequity compensation or otherwise), officer except in the Ordinary Course of Business or employee of the Companyother than any such change, not increase or amendment: (i) agreed upon by and between a Member and a Business Employee prior to the date hereof, and (ii) which Seller believes is necessary, after consultation with Buyer, to retain key employees;
(h) enter into any employment Contract that grants any severance or termination pay to any Business Employee other than with the Business Employees listed on Schedule 6.4(e) (whether payable in cash, equity compensation or otherwise), or adopt any new severance agreements plan, amend or arrangements modify or alter in any manner any severance plan, agreement or arrangement relating to any Business Employee on the date hereof;
(i) except as may be required by the terms of any employment agreements existing on the date hereof Applicable Laws, adopt or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate enter into any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiary;
(g) not incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entityForeign Plan;
(j) not sellamend, assign, lease, license, allow to expire modify or lapse, encumber or otherwise dispose violate any of the material terms of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipmentAcquired Contracts;
(k) not to the extent that any of the following would affect the Acquired Subsidiaries or adversely affect the Acquired Assets or the Business during the Post-Closing Tax Period (i) make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, ii) adopt or change any Tax accounting method with respect method, (iii) file any Tax Return outside the Ordinary Course of Business (except that Seller or its Affiliates may file Tax Returns for ADC (UK) claiming a UK Group Relief Allocation, subject to TaxesSection 6.16(c)(v)), (iv) file any amended Tax Return, except for an amended Tax Return that conforms to the last sentence of Section 6.16(c)(iv) (in which case Buyer need only be provided with post-filing notice of such amended Tax Return but no consent of Buyer will be required), (v) enter into any closing agreement, (vi) settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or (vii) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing assessment in respect of any Tax Return or the payment of any TaxTaxes;
(l) except as set forth in Schedule 6.5(l) commence or settle any actions or proceedings or obtain any releases of threatened actions or proceedings involving or relating to the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction)Business;
(m) other than as take any action, or fail to take any action, that would result in any of the representations and warranties set forth in Schedule 6.5(m) Article IV not being true and correct on and as of the Disclosure Schedules, not Closing Date (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required except where the failure to be set forth true and correct would not have a Material Adverse Effect) with the same force and effect as if such representations and warranties had been made on Schedule 4.16 and as of the Disclosure Schedules had it been entered into prior to the date of this AgreementClosing Date;
(n) not subject issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any shares of capital stock of any Acquired Subsidiary or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any Encumbrance character obligating any of its properties Acquired Subsidiary to issue any such shares or assets, including Intellectual Propertyother convertible securities;
(o) not cancel declare, set aside or compromise pay any debt dividends on or claim make any other distributions (whether in excess cash, capital stock or property) in respect of US$150,000 any capital stock of any Acquired Subsidiary, except in connection with the distribution of cash on hand as of the Closing Date, or waive split, combine or release reclassify any material right;such capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of such capital stock, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of such capital stock (or options, warrants or other rights exercisable therefor); or
(p) not assumetake, guarantee, endorse or agree in writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions described in Sections 6.4(a) through (o) above, or any other action that would prevent any Member from performing or cause any Member not to perform its covenants hereunder. In addition to any other obligation set forth in subsections this Section 6.4, Seller will, and will cause the other Members to: (c)-(ri) notify Buyer of any changes in the pricing or royalties charged to customers or licensees of the Business occurring between the date of this Section 6.5Agreement and the Closing Date and (ii) subject to applicable law, introduce Buyer Group to customers of the Business.
Appears in 1 contract
Conduct Prior to Closing. From the date of Except as otherwise expressly permitted by this Agreement until (including any action taken by Seller at the earlier direction of Buyer or its designee pursuant to SECTION 7.2(a)), between the Signing Date and the Closing Date, Seller will not take any action, or fail to take any action within its reasonable control, which action or inaction would cause any of the termination of this Agreement, except as (i) otherwise expressly required matters or provided herein, (ii) events set forth in Schedule 6.5 SECTION 5.26(a) through 5.26(n) to occur. In addition, except in accordance with SECTION 7.2(a), without the prior written consent of the Disclosure SchedulesBuyer, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries toSeller will not:
(a) conduct its businesses in take any action which would impair, detract or otherwise harm the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatesAcquired Assets;
(b) maintain its books buy, or enter into any inbound license agreement with respect to, Third Party Technology or the intellectual property rights of account and records consistent any third party to be incorporated in or used in connection with its past practice in all material respectsthe Business or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Assets or Licensed Technology with any third party;
(c) not (i) amend its Organizational Documents propose or enter into a Contract with any person, other than amendments which are ministerial in nature; Buyer, providing for the possible acquisition, transfer or disposition (iiwhether by way of merger, purchase of capital stock, purchase of assets or otherwise) split, combine or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capital;
(d) not declare or pay any dividends on or make other distributions in respect of any of its share capital;
(e) the Acquired Assets, other than with respect to any present or former, director, officer or employee of the Company, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely period between the Company Signing Date and any wholly-owned Company Subsidiary;
(g) not incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure SchedulesControl Date, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting periodconsistent with past practices;
(d) enter into any Contract relating to (i) the sale or distribution of any product or the provision of any service by Seller related to the Business or (ii) any of the Acquired Assets, adopt or change any accounting method other than with respect to Taxesthe period between the Signing Date and the Control Date, file any amended Tax Returnin the ordinary course of business, consistent with past practices;
(e) change pricing charged to Customers;
(f) enter into any closing agreementstrategic arrangement or relationship, settle development or compromise any proceeding with respect to any Tax claim joint marketing arrangement or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action agreement relating to the filing Business;
(g) enter into an Employment Agreement, fire without cause or give notice of termination without cause to, or transfer or make any offer of transfer to, any Continuing Employee;
(h) change, increase or amend the rate of remuneration or amount of bonuses or other benefits (including any equity-based remuneration (whether payable in cash, equity or otherwise), bonus or other benefit) or any other terms of employment of any Tax Return Continuing Employee;
(i) amend or modify, or violate the payment terms of, any of the Transferred Contracts, Consent Required Contracts or Non-Transferred Contracts;
(j) revalue any Taxof the Acquired Assets, including writing down the value of Inventory;
(k) commence or settle any Actions or Proceedings or obtain any releases of threatened Actions or Proceedings involving or relating to the Business other than the Actions or Proceedings set forth on SCHEDULE 7.3(k);
(l) except as set forth remove any tangible asset (that would otherwise constitute a Tangible Asset but for the fact that it was removed) used in Schedule 6.5(l) or necessary to the Business permanently from the Facilities or from the possession or control of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction)Continuing Employee;
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of Contracts with customers in the Disclosure Schedules had it been entered into prior to the date of this AgreementRestricted Territory, except in accordance with SECTION 7.2(a);
(n) not subject take any action, or fail to take any Encumbrance action, which would result in any of its properties the representations and warranties set forth in ARTICLE 5 not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date or assets, including Intellectual Property;to be in breach of any covenant or agreement contained in this Agreement; or
(o) not cancel take, or compromise any debt or claim agree in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections SECTIONS 7.3(a) through (c)-(rn) of this Section 6.5above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fairpoint Communications Inc)
Conduct Prior to Closing. From 5.1 Conduct of Business by the Affiliated Companies and Qorus. During the period from the date of this Agreement and continuing until the earlier of Closing or the termination of this AgreementAgreement pursuant to its terms or the Closing, the Affiliated Companies and any Subsidiaries and Qorus shall, except as (i) to the extent that the other party shall otherwise expressly required or provided hereinconsent in writing, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(a) conduct carry on its businesses business in the usual, regular and ordinary and usual course consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations (except where noncompliance would not have a Material Adverse Effect), pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present officers, managers and employees, and (iii) preserve its business organization intact and maintain its existing relations and goodwill relationships with customers, suppliers, creditorsdistributors, lessorslicensors, employees licensees, and others with which it has significant business associatesdealings. In addition, except as permitted or required by the terms of this Agreement, the Restructuring Documents or set forth on the Schedule 5.1 hereto, without the prior written consent of the other party, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Affiliated Companies and any Subsidiaries and Qorus shall not do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(b) maintain its books Except with respect to the Restructuring Agreements, transfer or license to any person or otherwise extend, amend or modify any material rights to any Intellectual Property, or enter into grants to transfer or license to any person future patent rights, other than in the ordinary course of account and records business consistent with its past practice practices provided that in all material respectsno event shall any party license on an exclusive basis or sell any Intellectual Property;
(c) not Except for employment agreements in the ordinary course or otherwise scheduled or set forth in this Agreement including Schedule 5.1, declare, set aside or pay any dividends on or make any other distributions (iwhether in cash, stock, equity securities or property) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) respect of any capital stock, membership interests or ownership interests, or split, combine or reclassify its outstanding share capital; any capital stock, membership interests or ownership interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, membership interests or ownership interests, other than the issuance of the Gateway Shares by Qorus prior to Closing;
(iiid) repurchasePurchase, redeem or otherwise acquire acquire, directly or indirectly, any shares of its share capital stock, membership interests or ownership interests, except repurchases of unvested shares, membership interests or ownership interests at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock, membership interests or exercisable for ownership interests, or subscriptions, rights, warrants or options to acquire any shares of its share capitalcapital stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock, membership interests or ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, membership interests, ownership interests or convertible or exchangeable securities (except relating to employment and similar agreements);
(df) Amend its Charter Documents;
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of Qorus or the Affiliated Companies or any Subsidiary, as applicable, or enter into any joint ventures, strategic partnerships or alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such party's ability to compete or to offer or sell any products or services (except for the transactions contemplated under the Debt Repayment Agreement as defined in Section 7.1(l) hereof);
(h) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except sales of inventory in the ordinary course of business consistent with past practice and, except for the sale, lease or disposition (other than through licensing) of property or assets which are not declare material, individually or pay in the aggregate, to the business of such party;
(i) Incur any dividends on indebtedness for borrowed money in excess of $100,000 other than re-financing existing debts, in the aggregate or make guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other distributions in respect rights to acquire any debt securities of Qorus or the Affiliated Companies or any Subsidiary, as applicable, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of its share capitalthe foregoing other than in the ordinary course of business of such party;
(ej) with respect to Adopt or amend any present employee benefit plan, policy or formerarrangement, director, officer any employee stock purchase or employee of the Companystock option plan, not (i) or enter into any employment contract or severance collective bargaining agreement (other than offer letters and agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof or by applicable Law), (ii) increase compensation or benefits (except for increases in salary or hourly wage rates, entered into in the ordinary course of business consistent with past practice), (iii) loan pay any special bonus or advance special remuneration to any money director or other propertyemployee, or increase the salaries or wage rates or fringe benefits (ivincluding rights to severance or indemnification) establishof its directors, adoptofficers, enter intoemployees or consultants, except in the ordinary course of business consistent with past practices and other than for new hires in the ordinary course;
(k) Pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement)in excess of $100,000 other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practices or in accordance with their terms, or liabilities recognized or disclosed in the most recent financial statements (or the notes thereto) of the Affiliated Companies or of any Subsidiary or of Qorus, as applicable, or incurred since the date of such financial statements, or waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce any confidentiality or similar agreement to which the Affiliated Companies or any Subsidiary or Qorus is a party or a beneficiary;
(l) Except in the ordinary course of business consistent with past practices, modify, amend or terminate any Benefit Plan Material Contract of the Affiliated Companies or any planSubsidiary or Qorus, agreementas applicable, programor waive, policydelay the exercise of, fund release or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreementassign any material rights or claims thereunder;
(fm) not issueExcept as required by U.S. GAAP, sell, or dispose of revalue any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capitalassets or make any change in accounting methods, other than any issuance, sale principles or disposal, solely between the Company and any wholly-owned Company Subsidiarypractices;
(gn) not incur Incur or enter into any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedulesagreement, not make any commitments for contract or make capital expenditures commitment requiring such party to pay in excess of US$500,000 $100,000 in the aggregate;
(i) not make any acquisition of12 month period, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course or otherwise provided in this Agreement and employment agreements which may be entered into by the Affiliated Companies or any Subsidiary;
(o) Settle any litigation in excess of business$100,000;
(p) Make or rescind any Tax elections that, change an annual accounting periodindividually or in the aggregate, adopt could be reasonably likely to adversely affect in any material respect the Tax liability or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreementattributes of such party, settle or compromise any proceeding with respect to any Tax claim or assessmentmaterial income tax liability or, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(l) except as set forth required by applicable law, materially change any method of accounting for Tax purposes or prepare or file any Return in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) other than as set forth in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreement;
(n) not subject to any Encumbrance any of its properties or assets, including Intellectual Property;
(o) not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material right;
(p) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Personmanner inconsistent with past practice;
(q) not change its accounting practicesForm, except as required by U.S. GAAPestablish or acquire any Subsidiary;
(r) not settle or compromise Permit any litigation, or release, dismiss or otherwise dispose Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any claim outstanding options, the termination of any outstanding repurchase rights or arbitration, other than settlements or compromises the termination of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected any cancellation rights issued pursuant to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;such plans; or
(s) not Agree in writing or otherwise agree, commit or resolve to take any of the actions set forth described in subsections Section 5.1 (c)-(ra) of this Section 6.5through (r) above.
Appears in 1 contract
Sources: Exchange Agreement (Qorus Com Inc)
Conduct Prior to Closing. From (a) By the LLC. Except as otherwise expressly permitted or required by this Agreement, during the period commencing on the date of this Agreement until and continuing through the earlier of Closing Date, the LLC will not, nor will the Asset Sellers, E&EC or the termination Company permit the LLC to, without the prior written consent of this Agreement, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 of the Disclosure Schedules, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by Purchaser in advance, which decision regarding consent shall be made promptly and Buyer which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and Sellers shall cause the Company and each of the Company Subsidiaries to:
(ai) conduct cause or permit any amendments to the Charter Documents of the LLC or any of its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatessubsidiaries;
(b) maintain its books of account and records consistent with its past practice in all material respects;
(c) not (i) amend its Organizational Documents other than amendments which are ministerial in nature; (ii) splitissue, combine grant, deliver or reclassify its outstanding share capital; sell or (iii) repurchaseauthorize the issuance, redeem grant, delivery or otherwise acquire sale of, or purchase or agree to purchase, any shares capital stock or membership interests, as the case may be, of the LLC or any of its share capital or any securities convertible into into, exercisable or exchangeable for, or exercisable for subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares of its share capitalor other convertible securities;
(diii) not declare or pay take any dividends on or make other distributions in respect of action to impair, encumber, create a Lien against any of its share capitalassets related to the Business;
(eiv) with respect to any present buy, or former, director, officer or employee of the Company, not (i) enter into any employment inbound license agreement with respect to, Technology or severance agreements or arrangements (except as may be required by the terms Intellectual Property Rights of any employment agreements existing on third party to be incorporated in or used in connection with the date hereof Business or by applicable Law)sell, lease or otherwise transfer or dispose of, or enter into any agreement with respect to, LLC IP or Transferred Intellectual Property Rights with any third party;
(iiv) increase compensation disclose any Covered Technology except to Buyer and its Affiliates and their respective advisers;
(vi) change pricing or benefits (except for increases in salary royalties charged to customers or hourly wage rateslicensees of the Business, other than in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other propertypractices, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were pursuant to contractual obligations in existence as of effect on the date of this Agreement;
(fvii) not issueenter into any definitive strategic arrangement or relationship, sellagreement or any definitive development or joint marketing arrangement or agreement relating to the Business;
(viii) fire, or dispose give notice of termination to, any of the LLC’s five most highly compensated Employees;
(ix) hire any salaried employees;
(x) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any shares ofEmployee (whether payable in cash, equity compensation or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capitalotherwise), other than any issuance, sale or disposal, solely between as required by the Company and any wholly-owned Company Subsidiaryterms of contractual arrangements in effect on the date of this Agreement;
(gxi) not incur grant any Indebtednessseverance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), other than as required by the terms of contractual arrangements in effect on the date of this Agreement, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof;
(hxii) other than as set forth on Schedule 6.5(h) revalue any of the Disclosure Schedules, not make any commitments assets of the Business for or make capital expenditures in excess of US$500,000 in the aggregateaccounting purposes;
(ixiii) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(jA) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (election in which case Sellers shall promptly notify Purchaser), settle respect of Taxes or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with in respect to Taxes, file any amended Tax Return, of Taxes or (B) enter into any closing agreement, agreement or settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes, except as specifically required by law or take accounting rules;
(xiv) commence or settle any other similar action actions, suits, proceedings, arbitration or governmental or regulatory investigations or audits involving or relating to the filing Business (“Actions or Proceedings”) or obtain any releases of any Tax Return threatened Actions or Proceedings involving payments by or to the payment of any TaxLLC exceeding $10,000 in the aggregate;
(lxv) make any capital expenditure or commitment exceeding $10,000 individually or $30,000 in the aggregate;
(xvi) pay, discharge or satisfy, in any amount in excess of $10,000 individually or $30,000 in the aggregate, any Liability of the LLC, except with respect to the purchase in the ordinary course of business of chemicals or other supplies necessary to satisfy obligations under existing commitments of the Business;
(xvii) change any accounting methods or practices (including any change in depreciation or amortization policies or rates, except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete specifically required by applicable law or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transactionaccounting rules);
(mxviii) declare, set aside or pay any dividend on, or other than as set forth distribution (whether in Schedule 6.5(mcash, stock or property) in respect of the Disclosure Schedulesany capital stock, not or split, combine or reclassify any shares of capital stock;
(ixix) terminate, extend, amend or modify the terms of any Material Contract Contract;
(xx) sell, lease, license or otherwise dispose of any assets (whether tangible or intangible) or properties, including the sale of any accounts receivable, or grant any security interest in any material respectsuch assets or properties, except for inventory in the ordinary course of business consistent with past practice;
(iixxi) fail to renew extend or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 loan with any Person, or purchase any debt securities of the Disclosure Schedules had it been entered into prior to the date of this Agreementany Person;
(nxxii) not subject incur any indebtedness, amend the terms of any outstanding loan agreement, or guarantee of any indebtedness, except for advances to any Encumbrance any employees for travel and business expenses in the ordinary course of its properties or assets, including Intellectual Propertybusiness consistent with past practices;
(oxxiii) not cancel waive or compromise release any debt right or claim in excess of US$150,000 $2,000, including any write-off or waive or release other compromise of any material rightaccount receivable;
(pxxiv) not assumelease, guaranteelicense, endorse sublease or permit any other occupancy of the Leased Real Property by any Person other than the LLC or any of its subsidiaries; or
(xxv) take, or agree in writing or otherwise become liable or responsible (whether directlyto take, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution to or investment in any Person;
(q) not change its accounting practices, except as required by U.S. GAAP;
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth described in subsections Sections 11.3(a)(i) through 11.3(a)(xxiv) above.
(c)-(rb) By the Asset Sellers and the Company. Except as otherwise expressly permitted or required by this Agreement, during the period commencing on the date of this Agreement and continuing through the Closing Date, none of the Asset Sellers will, without the prior written consent of Buyer:
(i) take any action to impair, encumber, create a Lien against or otherwise adversely affect the Membership Interests or the Acquired Assets;
(ii) sell, lease or otherwise transfer or dispose of, or enter into any agreement with respect to, any of the Membership Interests or the Acquired Assets;
(iii) revalue any of the Acquired Assets;
(iv) disclose Covered Technology except as permitted in Section 6.511.16(d); or
(v) amend, waive or modify, or violate the terms of, any of the Transferred Contracts;
(vi) take, or agree in writing or otherwise to take, any of the actions described in Sections 11.3(b)(i) through 11.3(b)(v) above.
(c) Any consent required by the terms of Section 11.3 will be deemed granted two (2) business days after notice is delivered to Buyer Parent via fax or e-mail, in each case confirmed telephonically by the requesting party or receipt confirmed by Buyer, to both of the employees of Buyer Parent noted below, unless confirmed otherwise in writing by either of such employees of Buyer Parent. ▇▇▇ ▇▇▇▇ Chief Financial Officer ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Director, Venture Analysis & Planning ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Appears in 1 contract
Conduct Prior to Closing. From Within the four (4) months prior to the date of this Agreement until the earlier of Closing or the termination of this Agreementhereof, except as (i) otherwise expressly required or provided herein, (ii) set forth in Schedule 6.5 Section 4.37 of the Disclosure SchedulesSchedule, (iii) required by applicable Law or Governmental Entity or (iv) consented to CoreWest has conducted its business only in writing by Purchaser in advance, which decision regarding consent shall be made promptly and which consent shall not be unreasonably withheld, conditioned or delayed, the Company shallordinary course, and Sellers shall cause except as contemplated by or resulting from their Agreement and the Company and each of the Company Subsidiaries totransactions contemplated hereby, CoreWest has not:
(a) conduct issued, sold or delivered any shares of its businesses in the ordinary and usual course in substantially the same manner as heretofore conducted and use reasonable efforts capital stock or issue or sell any securities convertible into, or options with respect to, or warrants to preserve purchase or rights to subscribe to, any shares of its business organization intact and maintain its existing relations and goodwill with customers, suppliers, creditors, lessors, employees and business associatescapital stock;
(b) maintain its books of account and records consistent with its past practice effected any recapitalization, reclassification, stock dividend, stock split or like change in all material respectscapitalization;
(c) not (i) amend amended its Organizational Documents other than amendments which are ministerial in nature; (ii) split, combine articles of incorporation or reclassify its outstanding share capital; or (iii) repurchase, redeem or otherwise acquire any shares of its share capital or any securities convertible into or exchangeable or exercisable for any shares of its share capitalby-laws;
(d) not declare merged or pay any dividends on consolidated with, or, except as a result of foreclosure or make other distributions repossession in respect of any the ordinary course of its share capitalmortgage banking business, acquired substantially all of the assets of, any other entity;
(e) with respect sold, transferred, leased or encumbered a material amount of assets (other than Excluded Assets) except in the ordinary course of business;
(f) materially altered or varied its methods or policies of (i) underwriting, pricing, originating, warehousing, selling and servicing, or buying or selling rights to service, its Mortgage Loans, (ii) hedging (which term includes both buying futures and forward commitments from financial institutions) its mortgage loan positions or commitments, and (iii) obtaining financing and credit;
(g) granted to any present director, officer, employee or formerconsultant any material increase in compensation or benefits (other than as may be required under the terms of written agreements in effect on the date hereof and other than normal increases made in the ordinary course of business to officers or employees in accordance with customary past practices and policies);
(h) granted any severance or termination pay (other than as may be required under the terms of written agreements in effect on the date hereof) to, or entered into or amended any employment or severance agreement with, any person, other than termination pay paid in the ordinary course of business to officers or employees in accordance with customary past practices and policies;
(i) adopted any new or amended any existing director, officer or employee benefit plans (including, without limitation, profit sharing, bonus, director and officer incentive compensation, retirement, medical, hospitalization, life or other insurance plans, arrangements and commitments) or any trust agreement relating thereto;
(j) incurred any debt other than in the ordinary course of the Companybusiness in amounts consistent with past practice;
(k) made any change in accounting principles or methods from those currently employed, not (i) enter into any employment or severance agreements or arrangements (except as may be required by the terms of any employment agreements existing on the date hereof GAAP or by applicable Law)regulatory requirements;
(l) granted any mortgage or security interest in, (ii) increase compensation or benefits (except for increases in salary made any pledge of, or hourly wage ratespermitted any lien or encumbrance to be placed on, any of its assets or properties other than in the ordinary course of business consistent with past practice), (iii) loan or advance any money or other property, or (iv) establish, adopt, enter into, amend or terminate any Benefit Plan or any plan, agreement, program, policy, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement;
(f) not issue, sell, or dispose of any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its share capital, other than any issuance, sale or disposal, solely between the Company and any wholly-owned Company Subsidiary;
(g) not incur any Indebtedness;
(h) other than as set forth on Schedule 6.5(h) of the Disclosure Schedules, not make any commitments for or make capital expenditures in excess of US$500,000 in the aggregate;
(i) not make any acquisition of, or investment in, assets or share interests of any other Person or entity;
(j) not sell, assign, lease, license, allow to expire or lapse, encumber or otherwise dispose of any of its properties and assets, including Intellectual Property, other than (i) the sale of inventory or (ii) the disposition of used or excess equipment;
(k) not make or change any Tax election, unless required by Law (in which case Sellers shall promptly notify Purchaser), settle or compromise any Tax liability other than in the ordinary course of business, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(l) except as set forth in Schedule 6.5(l) of the Disclosure Schedules, not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than the Transaction);
(m) canceled, waived, released or compromised any material debt or claim, other than as set forth upon payment in Schedule 6.5(m) of the Disclosure Schedules, not (i) amend or modify any Material Contract in any material respect, (ii) fail to renew or terminate any Material Contract or (iii) enter into any Contract that would have been required to be set forth on Schedule 4.16 of the Disclosure Schedules had it been entered into prior to the date of this Agreementfull;
(n) not subject failed to any Encumbrance any of its properties or assets, including Intellectual Propertymaintain in full force and effect all existing insurance policies and fidelity bonds;
(o) taken any action, or failed to take any action, that would result in a breach or violation of the representations and warranties of Sellers contained in this Agreement or caused any condition to the transactions contemplated hereby not cancel or compromise any debt or claim in excess of US$150,000 or waive or release any material rightto be satisfied;
(p) not assumeaccelerated, guaranteeterminated, endorse modified or otherwise become liable canceled any material contract, lease, or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or make any loan, advance or capital contribution license to or investment in any Personwhich CoreWest is a party;
(q) not change its accounting practicesentered into any employment or collective bargaining agreement, except as required by U.S. GAAP;or modified any existing employment or collective bargaining agreement; and
(r) not settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim or arbitration, other than settlements or compromises of litigation, claims or arbitration that agreed to do not exceed US$150,000 in the aggregate and are reasonably expected to be paid at or following the Closing and do not involve any injunctive or other non-monetary relief or impose restrictions on its business or operations;
(s) not commit to take any of the actions set forth foregoing included in subsections (c)-(ra) of this Section 6.5through (q).
Appears in 1 contract
Sources: Merger Agreement (Imc Mortgage Co)