Conduct Prior to Closing. From and after the date of this Agreement, each Seller shall cause the Corporation to (x) conduct the Business only in the Ordinary Course of Business (except as contemplated by the Reorganization), (y) use its commercially reasonable efforts to maintain in all material respects the Corporation's and the Business' relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, consultants and independent contractors and (z) consult with Purchaser prior to taking any action or entering into any transaction of material and strategic importance to the Corporation or the Business. Without limiting the generality of the foregoing, except (1) as otherwise expressly contemplated by this Agreement, (2) for actions approved by Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed), (3) as required to comply with Applicable Law, (4) that the Corporation may distribute to its shareholders any or all of the cash held by it at any time prior to the Time of Closing, whether by way of dividend, return of capital or other form of distribution or payment, and (5) for the consummation of the Reorganization, from and after the date of this Agreement, each Seller shall cause the Corporation and the Subsidiary not to take any of the following actions with respect to itself or the Business: (a) amend its constating documents, by-laws or other organizational documents; (b) adopt a plan or agreement of liquidation, dissolution, restructuring, amalgamation, merger, consolidation, recapitalization or other reorganization; (i) issue, sell, transfer, pledge, dispose of or suffer any Encumbrance on any shares of its capital or any material asset (except for the sale of the Corporation's goods and products to customers in the Ordinary Course of Business), (ii) grant any options, warrants or other rights to purchase or obtain any shares of its capital, (iii) split, combine, subdivide or reclassify any shares of its capital, (iv) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable in cash or in any shares of its capital, with respect to any shares of its capital or (v) redeem, purchase or otherwise acquire any shares of its capital; (d) issue any note, bond or other debt security, incur, assume or guarantee any Indebtedness or performance bond, surety bond or similar obligation, permit any assets to become subject to an Encumbrance other than a Permitted Encumbrance, or forgive, waive or agree to extend repayment on any Indebtedness or other obligation owed to the Corporation or the Subsidiary, except for standby letters of credit issued in the Ordinary Course of Business to customers of the Business in connection with the receipt of Customer Deposits or as a performance warranty pursuant to written Contracts which do not exceed $10,000 in each case or $50,000 in the aggregate; (i) increase or commit to any increase in the benefits under any Employee Plan or the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable, whether conditional or otherwise, to any officer or director of the Corporation; (ii) except in the Ordinary Course of Business, increase or commit to increase the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable to any employee or independent contractor (other than an officer or director) of the Corporation or with respect to the Business; (iii) adopt, amend or terminate any Employee Plan; or (iv) grant or pay any bonuses (other than the bonuses described in Section 3.2(m)); (f) enter into or amend any Contract relating to employment or compensation of any director, officer of member of the senior management of the Corporation, including any extension, renewal or new collective bargaining agreement, severance agreement or change in control agreement; (g) enter into or consummate any transaction involving the acquisition of the business, shares, assets or other properties of any other Person for consideration in excess of $50,000; (h) sell, lease, license or otherwise dispose of any material amount of assets or property in excess of $50,000, except pursuant to existing Contracts and except in the Ordinary Course of Business; (i) except as may be required as a result of a change in Law or in GAAP, elect or change any of its accounting principles or practices; (j) change or revoke any material election for Taxes, settle any material Action in respect of Taxes or enter into any Contract in respect of Taxes with any Governmental Body; (k) except as may be required as a result of a change in Law or in GAAP, write up or write down any of its material assets or revalue its inventory; (l) terminate, extend or fail to extend any of the Leases; (m) agree or otherwise commit to take any of the actions set forth in the immediately preceding clauses (a) through (l).
Appears in 1 contract
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Corporation hereunder, during the Interim Period:
(i) the Corporation shall conduct its business, operations and after affairs in the Ordinary Course, and the Corporation shall not, without the prior written consent of Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, each Seller shall cause would constitute a breach of any representation, warranty, covenant or other obligation of the Corporation to (x) conduct the Business only in the Ordinary Course of Business (except as contemplated by the Reorganization)this Agreement and, (y) use its commercially reasonable efforts to maintain in all material respects the Corporation's and the Business' relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, consultants and independent contractors and (z) consult with Purchaser prior to taking any action or entering into any transaction of material and strategic importance to the Corporation or the Business. Without without limiting the generality of the foregoing, except (1) as otherwise expressly contemplated by this Agreement, (2) for actions approved by Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed), (3) as required to comply with Applicable Law, (4) that the Corporation may distribute shall not:
(A) amalgamate, merge or consolidate with or acquire or agree to its shareholders any acquire all or substantially all of the cash held by it at shares and assets of any time prior Person, not to acquire or lease or agree to acquire or lease any business operations or any equity interests in any other Person, not to acquire or agree to acquire any legal or beneficial interest in any real property or not to occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property;
(B) do any act or thing of the kind described in Section 3.2(j);
(C) enter into any compromise or settlement of any litigation, proceeding or government investigation relating to the Time of Closing, whether by way of dividend, return of capital business or other form of distribution or payment, and (5) for the consummation of the Reorganization, from and after the date of this Agreement, each Seller shall cause the Corporation and the Subsidiary not to take any of the following actions with respect to itself or assets of the Business:Corporation;
(aD) amend make any Material modification to its usual sales, human resource, accounting, software, or management practices, processes or systems;
(E) enter into any Contract of the kind described in Section 3.2(s);
(F) move any Material part of its business to any other location from which the Corporation does not carry on its business at the date hereof; or
(G) make any change to its constating documents, by-laws or other organizational documents;
(bii) adopt the Corporation shall use its best efforts:
(A) to continue to maintain in full force and effect all the insurance policies or renewals thereof currently in effect; and
(B) to report all claims or known circumstances or events which may give rise to a plan or agreement claim to its insurers under the insurance policies in a due and timely manner to the Closing Date and to provide copies of liquidation, dissolution, restructuring, amalgamation, merger, consolidation, recapitalization or other reorganizationthose reports to Purchaser;
(iiii) issuethe Corporation shall use its best efforts to obtain, sellthe Consents described in Schedules 3.2(c);
(iv) the Corporation shall use its best efforts to preserve intact its business, transferassets, pledgeoperations and affairs and to carry on its business and affairs as currently conducted, dispose and to promote and preserve for Purchaser the goodwill of or suffer any Encumbrance on any shares of its capital or any material asset suppliers, customers and others having business relations with the Corporation;
(except for v) the sale Corporation shall pay and discharge the liabilities of the Corporation's goods and products to customers Corporation in the Ordinary Course of Business), (ii) grant any options, warrants or other rights to purchase or obtain any shares of its capital, (iii) split, combine, subdivide or reclassify any shares of its capital, (iv) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable in cash or in any shares of its capital, with respect to any shares of its capital or (v) redeem, purchase or otherwise acquire any shares of its capital;
(d) issue any note, bond or other debt security, incur, assume or guarantee any Indebtedness or performance bond, surety bond or similar obligation, permit any assets to become subject to an Encumbrance other than a Permitted Encumbrance, or forgive, waive or agree to extend repayment on any Indebtedness or other obligation owed to the Corporation or the Subsidiary, except for standby letters of credit issued in the Ordinary Course of Business to customers of the Business in connection accordance and consistent with the receipt of Customer Deposits or as a performance warranty pursuant to written Contracts which do not exceed $10,000 in each case or $50,000 in the aggregate;
(i) increase or commit to any increase in the benefits under any Employee Plan or the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable, whether conditional or otherwise, to any officer or director of the Corporation; (ii) except in the Ordinary Course of Business, increase or commit to increase the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable to any employee or independent contractor (other than an officer or director) of the Corporation or with respect to the Business; (iii) adopt, amend or terminate any Employee Plan; or (iv) grant or pay any bonuses (other than the bonuses described in Section 3.2(m));
(f) enter into or amend any Contract relating to employment or compensation of any director, officer of member of the senior management previous practice of the Corporation, including any extension, renewal or new collective bargaining agreement, severance agreement or change except those contested in control agreementgood faith by the Corporation;
(gvi) enter into the Corporation shall take, all necessary corporate action, steps and proceedings to approve or consummate any transaction involving authorize, validly and effectively, the acquisition execution and delivery of this Agreement and the other agreements and documents contemplated hereby and to complete the transfer of the business, shares, assets or other properties Purchased Shares to Purchaser and to cause all necessary meetings of any other Person for consideration in excess of $50,000;
(h) sell, lease, license or otherwise dispose of any material amount of assets or property in excess of $50,000, except pursuant to existing Contracts directors and except in the Ordinary Course of Business;
(i) except as may be required as a result of a change in Law or in GAAP, elect or change any of its accounting principles or practices;
(j) change or revoke any material election for Taxes, settle any material Action in respect of Taxes or enter into any Contract in respect of Taxes with any Governmental Body;
(k) except as may be required as a result of a change in Law or in GAAP, write up or write down any of its material assets or revalue its inventory;
(l) terminate, extend or fail to extend any shareholders of the Leases;
(m) agree or otherwise commit Corporation to take any of the actions set forth in the immediately preceding clauses (a) through (l).be held for that purpose; and
Appears in 1 contract
Sources: Share Purchase Agreement (Ramtron International Corp)
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Vendor hereunder, during the Interim Period, the Vendor shall:
(a) cause DevCo to conduct the Business and after the operations and affairs of DevCo only in the Ordinary Course, and DevCo shall not, without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, each Seller shall cause would constitute a breach of any representation, warranty, covenant or other obligation of the Corporation to (x) conduct the Business only Vendor in the Ordinary Course of Business (except as contemplated by the Reorganization)this Agreement and, (y) use its commercially reasonable efforts to maintain in all material respects the Corporation's and the Business' relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, consultants and independent contractors and (z) consult with Purchaser prior to taking any action or entering into any transaction of material and strategic importance to the Corporation or the Business. Without without limiting the generality of the foregoing, except the Vendor shall cause DevCo not to:
(1i) as otherwise expressly contemplated by this Agreementamalgamate, (2) for actions approved by Purchaser (which approval shall not be unreasonably withheld, conditioned merge or delayed), (3) as required consolidate with or acquire or agree to comply with Applicable Law, (4) that the Corporation may distribute to its shareholders any acquire all or substantially all of the cash held by it at shares or assets of any time prior Person, not to acquire or lease or agree to acquire or lease any business operations or any Equity Interests in any other Person, acquire or agree to acquire any legal or beneficial interest in any real property, and occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property that is not an Asset;
(ii) do any act or thing of the kind described in Sections 5.2(28) and 5.2(33);
(iii) enter or amend any Material Contract without the consent of the Purchaser;
(iv) enter into any compromise or settlement of any litigation, proceeding or government investigation relating to the Time of Closing, whether by way of dividend, return of capital Business or other form of distribution or payment, and (5) for the consummation any of the ReorganizationAssets;
(v) make any material modification to its usual sales, human resource, accounting, software, or management practices, processes or systems;
(vi) enter into any Contract of the kind described in Section 5.2(20);
(vii) move any material part of the Business to any other location from and after which DevCo does not carry on the Business at the date of this Agreementhereof;
(viii) knowingly take any action, each Seller shall cause the Corporation and the Subsidiary not or omit to take any action, that would result in DevCo being in violation of the following actions with respect to itself or the Business:Privacy Requirements;
(aix) amend make any change to its constating documents, by-laws or other organizational documentsConstating Documents;
(x) change its taxation year; and
(xi) change its methods of accounting in effect except as required by changes in GAAP;
(b) adopt subject to Section 4.1(1)(h), cause DevCo not to change any method of Tax accounting, make or change any material Tax election, file any materially amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any agreement with respect to any Tax or surrender any right to claim a plan material Tax refund, except in each case in the Ordinary Course;
(c) cause DevCo not to do any act or agreement thing that would result in a breach of liquidationSection 6.1;
(d) cause DevCo to continue to maintain in full force and effect all the Insurance Policies or renewals thereof currently in effect;
(e) cause DevCo to take out, dissolutionat the expense of the Purchaser, restructuringsuch additional insurance as may be reasonably requested by the Purchaser;
(f) cause DevCo to report all claims to its insurers under the Insurance Policies in a due and timely manner to the Closing Date and provide copies of those reports to the Purchaser;
(g) cause DevCo to preserve intact, amalgamationthe Business, mergerthe Assets, consolidationand the operations and affairs of DevCo and to carry on the Business and the affairs of DevCo in the Ordinary Course, recapitalization or other reorganizationand to promote and preserve for the Purchaser the goodwill of suppliers, customers and others having business relations with DevCo;
(h) cause DevCo to take all necessary and prudent steps to ensure that its Representatives comply with all Privacy Requirements;
(i) issue, sell, transfer, pledge, dispose cause DevCo to pay and discharge the liabilities and Taxes of or suffer any Encumbrance on any shares of its capital or any material asset (except for the sale of the Corporation's goods and products to customers DevCo in the Ordinary Course in accordance and consistent with the previous practice of Business), (ii) grant any options, warrants or other rights to purchase or obtain any shares of its capital, (iii) split, combine, subdivide or reclassify any shares of its capital, (iv) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable in cash or in any shares of its capital, with respect to any shares of its capital or (v) redeem, purchase or otherwise acquire any shares of its capital;
(d) issue any note, bond or other debt security, incur, assume or guarantee any Indebtedness or performance bond, surety bond or similar obligation, permit any assets to become subject to an Encumbrance other than a Permitted Encumbrance, or forgive, waive or agree to extend repayment on any Indebtedness or other obligation owed to the Corporation or the SubsidiaryDevCo, except for standby letters of credit issued those contested in the Ordinary Course of Business to customers of the Business in connection with the receipt of Customer Deposits or as a performance warranty pursuant to written Contracts which do not exceed $10,000 in each case or $50,000 in the aggregate;
(i) increase or commit to any increase in the benefits under any Employee Plan or the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable, whether conditional or otherwise, to any officer or director of the Corporationgood faith by DevCo; (ii) except in the Ordinary Course of Business, increase or commit to increase the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable to any employee or independent contractor (other than an officer or director) of the Corporation or with respect to the Business; (iii) adopt, amend or terminate any Employee Plan; or (iv) grant or pay any bonuses (other than the bonuses described in Section 3.2(m));
(f) enter into or amend any Contract relating to employment or compensation of any director, officer of member of the senior management of the Corporation, including any extension, renewal or new collective bargaining agreement, severance agreement or change in control agreement;
(g) enter into or consummate any transaction involving the acquisition of the business, shares, assets or other properties of any other Person for consideration in excess of $50,000;
(h) sell, lease, license or otherwise dispose of any material amount of assets or property in excess of $50,000, except pursuant to existing Contracts and except in the Ordinary Course of Business;
(i) except as may be required as a result of a change in Law or in GAAP, elect or change any of its accounting principles or practices;and
(j) change or revoke any material election for Taxesperiodically report, settle any material Action in respect and shall cause DevCo to periodically report, to the Purchaser as it requests concerning the state of Taxes or enter into any Contract in respect of Taxes with any Governmental Body;
(k) except as may be required as a result of a change in Law or in GAAPDevCo, write up or write down any of its material assets or revalue its inventory;
(l) terminate, extend or fail to extend any of the Leases;
(m) agree or otherwise commit to take any of Business and the actions set forth in the immediately preceding clauses (a) through (l)Assets.
Appears in 1 contract
Sources: Share Purchase Agreement
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Vendor hereunder, during the Interim Period, the Vendor shall:
(1) cause the Subsidiaries to conduct the Business and after the operations and affairs of the Subsidiaries only in the Ordinary Course, and the Subsidiaries shall not, without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, each Seller would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor in this Agreement and, without limiting the generality of the foregoing, the Vendor shall cause the Corporation Subsidiaries not to:
(a) amend any terms or conditions of employment or employment agreement of any employee of the Company, including without limitation the Key Employees without the agreement of the Purchaser which may be unreasonably withheld Amend any terms or conditions of existing contract of any of the Subsidiaries prior to the Closing Date, without the written agreement of the Purchaser which may be unreasonably withheld;
(xb) conduct amalgamate, merge or consolidate with or acquire or agree to acquire all or substantially all of the shares or assets of any Person, not to acquire or lease or agree to acquire or lease any business operations or any Equity Interests in any other Person, acquire or agree to acquire any legal or beneficial interest in any real property, and occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property that is not an Asset;
(c) do any act or thing of the kind described in Sections 5.2(28) (Absence of Changes) and 5.2(33) (Non-Arm’s Length Transactions);
(d) enter into any compromise or settlement of any litigation, proceeding or government investigation relating to the Business only or any of the Assets;
(e) make any material modification to its usual sales, human resource accounting, software, or management practices, processes or systems;
(f) enter into any Contract of the kind described in Section 5.2(19) Material Contracts and Other Contracts);
(g) move any material part of the Business to any other location from which the Subsidiaries do not carry on the Business at the date hereof;
(h) knowingly take any action, or omit to take any action, that would result in the Subsidiaries being in violation of the Privacy Requirements;
(i) make any change to their Constating Documents;
(j) change their taxation year; or
(k) change their methods of accounting in effect except as required by changes in GAAP.
(2) cause the Subsidiaries not to change any method of Tax accounting, make or change any material Tax election, file any materially amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any agreement with respect to any Tax or surrender any right to claim a material Tax refund, except in each case in the Ordinary Course Course;
(3) cause the Subsidiaries not to do any act or thing that would result in a breach of Business Section 6.1;
(except 4) cause the Subsidiaries to continue to maintain in full force and effect all the Insurance Policies or renewals thereof currently in effect;
(5) cause the Subsidiaries to take out, at the expense of the Purchaser, such additional insurance as contemplated may be reasonably requested by the Reorganization), Purchaser;
(y6) cause the Subsidiaries to report all claims or known circumstances or events which may give rise to a claim to its insurers under the Insurance Policies in a due and timely manner to the Closing Date and provide copies of those reports to the Purchaser;
(7) use its commercially reasonable efforts to maintain obtain or cause the Subsidiaries to use their commercially reasonable efforts to obtain, the Approvals described in all material respects the Corporation's and the Business' relationships with third parties (including lessors, licensors, suppliers, distributors and customersSchedule 5.2(22)(b) and employees, consultants and independent contractors and (z) consult with Purchaser prior to taking any action or entering into any transaction of material and strategic importance to the Corporation or the Business. Without limiting the generality of the foregoing, except (1) as otherwise expressly contemplated by this Agreement, (2) for actions approved by Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed), (3) as required to comply with Applicable Law, (4) that the Corporation may distribute to its shareholders any or all of the cash held by it at any time prior to the Time of Closing, whether by way of dividend, return of capital or other form of distribution or payment, and (5) for the consummation of the Reorganization, from and after the date of this Agreement, each Seller shall cause the Corporation and the Subsidiary not to take any of the following actions with respect to itself or the Business:
(a) amend its constating documents, by-laws or other organizational documentsDisclosure Letter;
(b) adopt a plan or agreement 8) cause the Subsidiaries to preserve intact, the Business, the Assets, and the operations and affairs of liquidationthe Subsidiaries and to carry on the Business and the affairs of the Subsidiaries as currently conducted, dissolutionand to promote and preserve for the Purchaser the goodwill of suppliers, restructuring, amalgamation, merger, consolidation, recapitalization or other reorganizationcustomers and others having business relations with the Subsidiaries;
(i9) issue, sell, transfer, pledge, dispose of or suffer any Encumbrance on any shares of its capital or any material asset cause the Subsidiaries to take all necessary and prudent steps to ensure that their Representatives comply with all Privacy Requirements;
(except for 10) cause the sale Subsidiaries to pay and discharge the liabilities and Taxes of the Corporation's goods and products to customers Subsidiaries in the Ordinary Course in accordance and consistent with the previous practice of Business)the Subsidiaries, (ii) grant any options, warrants or other rights to purchase or obtain any shares of its capital, (iii) split, combine, subdivide or reclassify any shares of its capital, (iv) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable except those contested in cash or in any shares of its capital, with respect to any shares of its capital or (v) redeem, purchase or otherwise acquire any shares of its capitalgood faith by the Subsidiaries;
(d11) issue any notetake all necessary corporate action, bond steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of this Agreement and the other debt security, incur, assume or guarantee any Indebtedness or performance bond, surety bond or similar obligation, permit any assets agreements and documents contemplated hereby and to become subject to an Encumbrance other than a Permitted Encumbrance, or forgive, waive or agree to extend repayment on any Indebtedness or other obligation owed complete the transfer of the Purchased Shares to the Corporation or the Subsidiary, except for standby letters Purchaser and to cause all necessary meetings of credit issued in the Ordinary Course of Business to customers directors and shareholders of the Business in connection with the receipt of Customer Deposits or as a performance warranty pursuant Vendor to written Contracts which do not exceed $10,000 in each case or $50,000 in the aggregatebe held for that purpose;
(i12) increase or commit cause the Subsidiaries to any increase in take all necessary corporate action, steps and proceedings to authorize, consent and otherwise complete the benefits under any Employee Plan or the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable, whether conditional or otherwise, to any officer or director transfer of the Corporation; (ii) except in Purchased Shares to the Ordinary Course Purchaser and to cause all necessary meetings of Business, increase or commit to increase the compensation (in any form, including severance compensation directors and compensation payable in connection with a change of control or change in position or responsibilities) payable to any employee or independent contractor (other than an officer or director) shareholders of the Corporation or with respect Subsidiaries to the Business; (iii) adopt, amend or terminate any Employee Plan; or (iv) grant or pay any bonuses (other than the bonuses described in Section 3.2(m))be held for that purpose;
(f13) enter into or amend any Contract relating periodically report, and shall cause the Subsidiaries to employment or compensation of any directorperiodically report, officer of member to the Purchaser as it requests concerning the state of the senior management of Subsidiaries, the Corporation, including any extension, renewal or new collective bargaining agreement, severance agreement or change in control agreement;Business and the Assets; and
(g14) enter into or consummate any transaction involving use its commercially reasonable efforts to satisfy the acquisition of the business, shares, assets or other properties of any other Person for consideration conditions contained in excess of $50,000;
(h) sell, lease, license or otherwise dispose of any material amount of assets or property in excess of $50,000, except pursuant to existing Contracts and except in the Ordinary Course of Business;
(i) except as may be required as a result of a change in Law or in GAAP, elect or change any of its accounting principles or practices;
(j) change or revoke any material election for Taxes, settle any material Action in respect of Taxes or enter into any Contract in respect of Taxes with any Governmental Body;
(k) except as may be required as a result of a change in Law or in GAAP, write up or write down any of its material assets or revalue its inventory;
(l) terminate, extend or fail to extend any of the Leases;
(m) agree or otherwise commit to take any of the actions set forth in the immediately preceding clauses (a) through (l)Section 4.1.
Appears in 1 contract
Sources: Share Purchase Agreement
Conduct Prior to Closing. From Without in any way limiting any other obligations of the Vendors hereunder, during the Interim Period, the Vendors’ Representative shall:
(a) cause the Group Members to conduct the Business and after the operations and affairs of the Group Members only in the Ordinary Course, and the Group Members shall not, without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, each Seller shall cause would constitute a breach of any representation, warranty, covenant or other obligation of the Corporation to (x) conduct the Business only Vendors in the Ordinary Course of Business (except as contemplated by the Reorganization)this Agreement and, (y) use its commercially reasonable efforts to maintain in all material respects the Corporation's and the Business' relationships with third parties (including lessors, licensors, suppliers, distributors and customers) and employees, consultants and independent contractors and (z) consult with Purchaser prior to taking any action or entering into any transaction of material and strategic importance to the Corporation or the Business. Without without limiting the generality of the foregoing, except the Vendors’ Representative shall cause each Group Member not to:
(1i) as otherwise expressly contemplated by this Agreementamalgamate, (2) for actions approved by Purchaser (which approval shall not be unreasonably withheld, conditioned merge or delayed), (3) as required consolidate with or acquire or agree to comply with Applicable Law, (4) that the Corporation may distribute to its shareholders any acquire all or substantially all of the cash held by it at shares or assets of any time prior Person, not to acquire or lease or agree to acquire or lease any business operations or any Equity Interests in any other Person, acquire or agree to acquire any legal or beneficial interest in any real property, and occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property that is not an Asset;
(ii) do any act or thing of the kind described in Sections 5.2(30) and 5.2(35);
(iii) enter into any compromise or settlement of any litigation, proceeding or government investigation relating to the Time of Closing, whether by way of dividend, return of capital Business or other form of distribution or payment, and (5) for the consummation any of the ReorganizationAssets;
(iv) make any material modification to its usual sales, human resource, accounting, Software, or management practices, processes or systems;
(v) enter into any Contract of the kind described in Section 5.2(21);
(vi) move any material part of the Business to any other location from and after which the Group Member does not carry on the Business at the date of this Agreementhereof;
(vii) knowingly take any action, each Seller shall cause the Corporation and the Subsidiary not or omit to take any action, that would result in any Group Member being in violation of the following actions with respect to itself or the Business:Privacy Requirements;
(aviii) amend make any change to its constating documents, by-laws or other organizational documentsConstating Documents;
(ix) change its taxation year; and
(x) change its methods of accounting in effect except as required by changes in IFRS;
(b) adopt cause the Group Members not to make or change any material Tax election, file any materially amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any agreement with respect to any Tax or surrender any right to claim a plan material Tax refund, except in each case in the Ordinary Course.
(c) cause each Group Member not to do any act or agreement thing that would result in a breach of liquidationSection 6.1;
(d) cause each Group Member to continue to maintain in full force and effect all the Insurance Policies or renewals thereof currently in effect;
(e) cause each Group Member to report all claims or known circumstances or events which may give rise to a claim to its insurers under the Insurance Policies in a due and timely manner to the Closing Date and provide copies of those reports to the Purchaser;
(f) use their commercially reasonable efforts to obtain or cause each Group Member to use its commercially reasonable efforts to obtain, dissolutionthe Approvals described in Schedule 5.2(24);
(g) cause each Group Member to preserve intact, restructuringthe Business, amalgamationthe Assets, mergerand the operations and affairs of the Group Member and to carry on the Business and the affairs of the Group Member as currently conducted, consolidationand to promote and preserve for the Purchaser the goodwill of suppliers, recapitalization or other reorganizationcustomers and others having business relations with the Group Member;
(h) cause the Group Members to take all necessary and prudent steps to ensure that its Representatives comply with all Privacy Requirements;
(i) issue, sell, transfer, pledge, dispose of or suffer cause each Group Member to maintain its corporate records in accordance with Applicable Law and rectify any Encumbrance on any shares of its capital or any material asset (except for deficiencies disclosed in Schedule 5.2(28) so that no such deficiencies exist at the sale of the Corporation's goods and products to customers in the Ordinary Course of Business), (ii) grant any options, warrants or other rights to purchase or obtain any shares of its capital, (iii) split, combine, subdivide or reclassify any shares of its capital, (iv) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable in cash or in any shares of its capital, with respect to any shares of its capital or (v) redeem, purchase or otherwise acquire any shares of its capital;
(d) issue any note, bond or other debt security, incur, assume or guarantee any Indebtedness or performance bond, surety bond or similar obligation, permit any assets to become subject to an Encumbrance other than a Permitted Encumbrance, or forgive, waive or agree to extend repayment on any Indebtedness or other obligation owed to the Corporation or the Subsidiary, except for standby letters of credit issued in the Ordinary Course of Business to customers of the Business in connection with the receipt of Customer Deposits or as a performance warranty pursuant to written Contracts which do not exceed $10,000 in each case or $50,000 in the aggregate;
(i) increase or commit to any increase in the benefits under any Employee Plan or the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable, whether conditional or otherwise, to any officer or director of the Corporation; (ii) except in the Ordinary Course of Business, increase or commit to increase the compensation (in any form, including severance compensation and compensation payable in connection with a change of control or change in position or responsibilities) payable to any employee or independent contractor (other than an officer or director) of the Corporation or with respect to the Business; (iii) adopt, amend or terminate any Employee Plan; or (iv) grant or pay any bonuses (other than the bonuses described in Section 3.2(m));
(f) enter into or amend any Contract relating to employment or compensation of any director, officer of member of the senior management of the Corporation, including any extension, renewal or new collective bargaining agreement, severance agreement or change in control agreement;
(g) enter into or consummate any transaction involving the acquisition of the business, shares, assets or other properties of any other Person for consideration in excess of $50,000;
(h) sell, lease, license or otherwise dispose of any material amount of assets or property in excess of $50,000, except pursuant to existing Contracts and except in the Ordinary Course of Business;
(i) except as may be required as a result of a change in Law or in GAAP, elect or change any of its accounting principles or practicesClosing Time;
(j) change or revoke any material election for Taxescause each Group Member to pay and discharge the liabilities and Taxes of the Group Member in the Ordinary Course in accordance and consistent with the previous practice of the Group Member, settle any material Action except those contested in respect of Taxes or enter into any Contract in respect of Taxes with any Governmental Bodygood faith by the Group Member;
(k) except as may take all necessary corporate action, steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and to complete the transfer of the Purchased Shares to the Purchaser and to cause all necessary meetings of directors and shareholders of the Corporation to be required as a result of a change in Law or in GAAP, write up or write down any of its material assets or revalue its inventoryheld for that purpose;
(l) terminatecause the Corporation to take all necessary corporate action, extend or fail steps and proceedings to extend any authorize, consent and otherwise complete the transfer of the LeasesPurchased Shares to the Purchaser and to cause all necessary meetings of directors and shareholders of the Corporation to be held for that purpose;
(m) agree or otherwise commit periodically report, and shall cause each Group Member to take any periodically report, to the Purchaser as it requests concerning the state of the actions set forth Group Member, the Business and the Assets; and
(n) use their commercially reasonable efforts to satisfy the conditions contained in the immediately preceding clauses (a) through (l)Section 4.1.
Appears in 1 contract
Sources: Share Purchase Agreement