Conduct Prior to the Closing Date. 6.1 Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date except as expressly contemplated by this Agreement and the Related Agreements, the Shareholders agree to cause the Company to (i) conduct the Business of Company, except to the extent that Buyer shall otherwise consent in writing (which consent will not be unreasonably withheld), in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (ii) pay the debts and Taxes of the Company when due, (iii) pay or perform other material obligations when due, and, to the extent consistent with such business, to preserve intact the present business organizations of the Company and (iv) use its commercially reasonable best efforts to keep available the services of the present officers and Employees of the Company and preserve the relationships of the Company and with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the goal of preserving unimpaired the goodwill and ongoing businesses of the Company at the Closing Date. The Shareholders’ Representative shall promptly notify Buyer of any material event or occurrence or emergency involving the Company of which the Shareholders’ Representative becomes aware that arises during the period from the date of this Agreement and continuing until the earlier of the termination date of this Agreement or the Closing Date. Except as expressly contemplated by this Agreement and the Related Agreements, the Shareholders shall take reasonable steps to cause Company to not, without the prior written consent of Buyer (which consent will not be unreasonably withheld): (a) cause or permit any modifications, amendments or changes to the Charter Documents; (b) undertake any expenditure, transaction or commitment exceeding $10,000 individually or $20,000 in the aggregate, except in the ordinary course of business consistent with past practice (including the purchase of supplies or products for the sale to customers) or (ii) any commitment or transaction of the type described in Section 4.13 hereof; (c) pay, discharge, waive or satisfy, in an amount in excess of $10,000 in any one case, or $20,000 in the aggregate, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheet; (d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by Swedish GAAP; (e) make or change any material election in respect of Taxes not consistent with prior practices, adopt any new or change any accounting method in respect of Taxes, enter into any agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any material Return unless a copy of such Return has been delivered to Buyer for review a reasonable time prior to filing and Buyer has approved such Return, which approval shall not be unreasonably withheld or delayed; (f) materially revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable; (g) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for Company ordinary shares); (h) increase or otherwise change the salary or other compensation payable or to become payable to any officer, director, employee, consultant or advisor, except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) of a severance payment, termination payment, bonus or other additional salary or compensation to any such person except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law; (i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except properties or assets (whether tangible or intangible) which are not Company Intellectual Property and only in the ordinary course of business and consistent with past practice, and except sales and license of products and services in the ordinary course of business pursuant to the Company’s standard form of end user license agreement and terms and conditions in the form previously provided to Buyer; (j) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement providing for a loan by the Company to any Person, except for advances to employees for travel and business expenses and extensions of credit, in each case, in the ordinary course of business consistent with past practices; (k) incur any indebtedness for borrowed money, amend the terms of any outstanding loan agreement, guarantee any indebtedness for borrowed money of any Person, issue or sell any debt securities or guarantee any debt securities of any Person; (l) waive or release any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, other than amounts subject to reserve on the current balance sheet; (m) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets; (n) issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Capital Stock or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating the Company to issue or purchase any such shares or other convertible securities; (o) (i) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person except in the ordinary course of business consistent with past practice, (ii) purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to the Intellectual Property of any Person, other than standard off the shelf software that is not used in the design or development of the Company’s products, (iii) enter into any agreement or modify or amend any existing agreement with respect to the development by the Company of any Intellectual Property with a third party, or (iv) propose or consent to any change to pricing or royalties set or charged by the Company to its customers or licensees, or the pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company; (p) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company; (q) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements; (r) terminate, amend or otherwise modify (or agree to do so), or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule; (s) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities 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 or any equity securities, individually or in the aggregate, to the business of the Company; (t) adopt or amend any Company Employee Plan, enter into or amend any Employee Agreement or enter into any employment contract; (u) enter into any strategic alliance, affiliate agreement or joint marketing arrangement or agreement; (v) take any action to accelerate the vesting schedule of any of the outstanding Company Capital Stock; (w) alter, or enter into any commitment to alter, its interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest; (x) cancel or amend any insurance policy; or (y) take, commit, or agree in writing or otherwise to take, any of the actions described in Sections 6.1(a) through 6.1(x) hereof, or any other action that would reasonably be expected to (i) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder or (ii) cause or result in any of its respective representations and warranties contained herein being untrue or incorrect (such that the condition set forth in 8.2(a) would not be satisfied).
Appears in 1 contract
Conduct Prior to the Closing Date. 6.1 Conduct of Business of each of Almo and the CompanySellers. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date except as expressly contemplated by this Agreement Closing, each of Almo and the Related Agreements, the Shareholders agree to cause the Company to Sellers agrees (i) conduct the Business of Company, except to the extent that Buyer shall otherwise consent in writing (which consent will not be unreasonably withheld), writing) to carry on its Computer Products Division business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (ii) to pay the all debts and Taxes of the Company taxes when due, (iii) to pay or perform other material obligations when due, and, to the extent consistent with such businessactions, to use all reasonable efforts consistent with past practice and policies to preserve intact the its present business organizations of the Company and (iv) use its commercially reasonable best efforts to organization, keep available the services of the present officers and Key Employees of the Company and preserve the its relationships of the Company and with customers, suppliers, distributors, licensors, licensees, and others having business dealings with themit, all with the goal of preserving unimpaired the goodwill and ongoing businesses of associated with the Company at Acquired Assets on the Closing Date. The Shareholders’ Representative Each of Almo and the Sellers shall promptly notify Buyer of any material event which materially adversely effects the Business or occurrence or emergency involving the Company of which the Shareholders’ Representative becomes aware that arises during the period from the date of this Agreement and continuing until the earlier of the termination date of this Agreement or the Closing Dateany Acquired Assets. Except as expressly contemplated by this Agreement or disclosed in Schedule 6.1, each of Almo and the Related Agreements, the Shareholders shall take reasonable steps to cause Company to Sellers will not, without the prior written consent of Buyer (which consent will not be unreasonably withheld):Buyer:
(a) cause Enter into any commitment or permit transaction related to any modifications, amendments or changes to Acquired Asset not in the Charter Documentsordinary course of business;
(b) undertake Transfer to any expenditure, transaction person or commitment exceeding $10,000 individually entity any rights to the Seller Registered Intellectual Property or $20,000 Almo's or any of the Seller's trade secrets applicable to the Business (other than end-user licenses for software granted to customers of each of Almo and the Sellers in the aggregateordinary course of business);
(c) Enter into any license agreement with respect to the intellectual property of any person or entity affecting the Business, except in the ordinary course of business consistent with past practice (including the purchase of supplies or products for the sale to customers) or (ii) any commitment or transaction of the type described in Section 4.13 hereof;
(c) pay, discharge, waive or satisfy, in an amount in excess of $10,000 in any one case, or $20,000 in the aggregate, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by Swedish GAAP;
(e) make or change any material election in respect of Taxes not consistent with prior practices, adopt any new or change any accounting method in respect of Taxes, enter into any agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any material Return unless a copy of such Return has been delivered to Buyer for review a reasonable time prior to filing and Buyer has approved such Return, which approval shall not be unreasonably withheld or delayed;
(f) materially revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for Company ordinary shares);
(h) increase or otherwise change the salary or other compensation payable or to become payable to any officer, director, employee, consultant or advisor, except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) of a severance payment, termination payment, bonus or other additional salary or compensation to any such person except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law;
(i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except properties or assets (whether tangible or intangible) which are not Company Intellectual Property and only in the ordinary course of business and consistent with past practice, and except sales and license of products and services in the ordinary course of business pursuant to the Company’s standard form of end user license agreement and terms and conditions in the form previously provided to Buyer;
(j) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement providing for a loan by the Company to any Person, except for advances to employees for travel and business expenses and extensions of credit, in each case, in the ordinary course of business consistent with past practices;
(k) incur any indebtedness for borrowed money, amend the terms of any outstanding loan agreement, guarantee any indebtedness for borrowed money of any Person, issue or sell any debt securities or guarantee any debt securities of any Person;
(l) waive or release any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, other than amounts subject to reserve on the current balance sheet;
(m) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets;
(n) issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Capital Stock or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating the Company to issue or purchase any such shares or other convertible securities;
(o) (i) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person except in the ordinary course of business consistent with past practice, (ii) purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to the Intellectual Property of any Person, other than standard off the shelf software that is not used in the design or development of the Company’s products, (iii) enter into any agreement or modify or amend any existing agreement with respect to the development by the Company of any Intellectual Property with a third party, or (iv) propose or consent to any change to pricing or royalties set or charged by the Company to its customers or licensees, or the pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company;
(p) enter Enter into or amend any Contract agreements pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the CompanyComputer Products Division, except in the ordinary course of business;
(qe) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements;
(r) terminate, amend Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts agreements set forth or described in each of Almo and the Company Disclosure ScheduleSellers schedules;
(sf) acquire Commence or settle any litigation, except to enforce its rights under or to interpret this Agreement or any other agreement, obligation or arrangement contemplated hereby or entered into or established in connection herewith which affects the Business, except in the ordinary course of business;
(g) Sell, lease, license, pledge, or otherwise dispose of any Acquired Asset, (other than end-user licenses for software granted to customers of each of Almo and the Sellers in the ordinary course of business and other than sales of inventory in the ordinary course of business);
(h) Cause or permit any amendments to its charter documents, bylaws, membership agreements, partnership agreements, or like documents which would materially affect the Business or any Acquired Asset;
(i) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association association, or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material or any equity securitiesmaterial, individually or in the aggregate, to the business of each of Almo and the CompanySellers in each case to the extent any such action would impair Buyer's rights to acquire the Acquired Assets under this Agreement;
(tj) adopt Revalue any of the Acquired Assets, including without limitation writing down the value of inventory or amend any Company Employee Plan, enter into writing off notes and accounts receivable other than in the ordinary course of business;
(k) Adopt or amend any Employee Agreement Plan, or enter into any written employment contractcontract with a Key Employee, pay or agree to pay any special bonus or special remuneration to any Key Employee, or increase the salaries or wage rates of any Key Employee.
(l) Effect or agree to effect, including by way of hiring or involuntary termination, any change in the Key Employees other than in the ordinary course of business;
(um) enter Enter into any strategic alliance, affiliate agreement joint development or joint marketing arrangement agreement affecting the Business or agreement;
(v) take any action to accelerate the vesting schedule of any of the outstanding Company Capital Stock;
(w) alter, or enter into any commitment to alter, its interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(x) cancel or amend any insurance policyAcquired Asset; or
(yn) take, commitTake, or agree in writing or otherwise to take, any of the actions described in Sections 6.1(a) through 6.1(x(m) hereofabove, or any other action that would reasonably be expected to (i) prevent each of Almo and the Company Sellers from performing, performing or cause each of Almo and the Company Sellers not to perform, perform its covenants or agreements hereunder or (ii) cause or result in any of its respective representations and warranties contained herein being untrue or incorrect (such that the condition set forth in 8.2(a) would not be satisfied)hereunder.
Appears in 1 contract
Conduct Prior to the Closing Date. 6.1 5.1 Conduct of Business of the CompanyKnowledgeWell. During the period from the date of this Agreement November 30, 1998 and continuing until the earlier of (i) the termination of this Agreement or and (ii) the Closing Date except as expressly contemplated by this Agreement and the Related AgreementsDate, the Shareholders agree to cause the Company to Shareholders, as shareholders, and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as a director, shall procure that KnowledgeWell shall (i) conduct the Business of Company, except to the extent that Buyer CBT shall otherwise consent in writing (which consent will not be unreasonably withheld), writing) carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (ii) pay the its debts and Taxes of the Company when due, (iii) pay or perform other material obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practice and policies to preserve intact the its present business organizations of the Company and (iv) use its commercially reasonable best efforts to organization, keep available the services of the its present officers and Employees of the Company key employees and preserve the their relationships of the Company and with customers, suppliers, distributors, licensors, licensees, and others having business dealings with themit, all with the goal of preserving unimpaired the its goodwill and ongoing businesses of the Company business at the Closing Date. The Shareholders’ Representative KnowledgeWell shall promptly notify Buyer CBT of any material event or occurrence or emergency not in the ordinary course of its business, and any material event involving KnowledgeWell or its business. Such representatives and advisors as CBT requests may be designated to work with KnowledgeWell with regard to the Company management and operations of which KnowledgeWell. Subject to such representatives and advisors being reasonably available, KnowledgeWell will consult with such representatives and advisors with respect to any action that may materially affect the Shareholders’ Representative becomes aware that arises during the period from the date business of KnowledgeWell. KnowledgeWell will furnish to such representatives and advisors such information as they may reasonably request for this Agreement and continuing until the earlier of the termination date of this Agreement or the Closing Datepurpose. Except as expressly contemplated by this Agreement and the Related Agreementsor disclosed in Schedule 5.1, the Shareholders Shareholders, as shareholders, and ▇▇. ▇▇▇▇▇▇, as a director, shall take reasonable steps to procure that KnowledgeWell shall not (and KW Group shall cause Company the Subsidiary to not), without the prior written consent of Buyer CBT (which consent will shall not be unreasonably withheld):
(a) cause Enter into any commitment or permit any modifications, amendments or changes to transaction not in the Charter Documents;ordinary course of business.
(b) undertake Transfer to any expenditure, transaction person or commitment exceeding $10,000 individually or $20,000 entity any rights to KnowledgeWell Intellectual Property Rights (other than pursuant to end-user licenses in the aggregateordinary course of business);
(c) Enter into or amend any material agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of KnowledgeWell;
(d) Amend or otherwise modify (or agree to do so), except in the ordinary course of business consistent with past practice (including business, or violate the purchase of supplies or products for the sale to customers) or (ii) terms of, any commitment or transaction of the type agreements set forth or described in Section 4.13 hereof;
(c) pay, discharge, waive or satisfy, in an amount in excess of $10,000 in any one case, or $20,000 in the aggregate, any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheet;
(d) adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by Swedish GAAPKnowledgeWell Disclosure Letter;
(e) make or change Commence any material election in respect of Taxes not consistent with prior practices, adopt any new or change any accounting method in respect of Taxes, enter into any agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any material Return unless a copy of such Return has been delivered to Buyer for review a reasonable time prior to filing and Buyer has approved such Return, which approval shall not be unreasonably withheld or delayedlitigation;
(f) materially revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declareDeclare, set aside, aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stockof its share capital, or split, combine or reclassify any Company Capital Stock of its share capital or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stockshare capital of KnowledgeWell, or directly or indirectly repurchase, redeem or otherwise acquire acquire, directly or indirectly, any shares of Company Capital Stock its share capital (or options, warrants or other rights convertible into, exercisable or exchangeable for Company ordinary sharestherefor);
(hg) increase or otherwise change the salary or other compensation payable or to become payable to any officer, director, employee, consultant or advisor, except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law or make any declaration, payment or commitment or obligation of any kind Except for the payment (whether in cash issuance of shares upon exercise or equity) conversion of a severance paymentpresently outstanding KnowledgeWell Options or KW Preferred, termination paymentcreate, bonus or other additional salary or compensation to any such person except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law;
(i) sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except properties or assets (whether tangible or intangible) which are not Company Intellectual Property and only in the ordinary course of business and consistent with past practice, and except sales and license of products and services in the ordinary course of business pursuant to the Company’s standard form of end user license agreement and terms and conditions in the form previously provided to Buyer;
(j) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement providing for a loan by the Company to any Person, except for advances to employees for travel and business expenses and extensions of credit, in each case, in the ordinary course of business consistent with past practices;
(k) incur any indebtedness for borrowed money, amend the terms of any outstanding loan agreement, guarantee any indebtedness for borrowed money of any Person, issue or sell any debt securities or guarantee any debt securities of any Person;
(l) waive or release any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, other than amounts subject to reserve on the current balance sheet;
(m) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets;
(n) issue, grant, deliver or sell or authorize or propose or contract for the creation, issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Capital Stock of its share capital or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating the Company it to issue or purchase any such shares or other convertible securities;
(oh) Cause or permit any amendments to its Memorandum or Articles of Association or Bylaws (as the case may be) or pass any resolution by its members;
(i) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person except in the ordinary course of business consistent with past practice, (ii) purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to the Intellectual Property of any Person, other than standard off the shelf software that is not used in the design or development of the Company’s products, (iii) enter into any agreement or modify or amend any existing agreement with respect to the development by the Company of any Intellectual Property with a third party, or (iv) propose or consent to any change to pricing or royalties set or charged by the Company to its customers or licensees, or the pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company;
(p) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(q) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements;
(r) terminate, amend or otherwise modify (or agree to do so), or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(s) acquire Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities 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 or any equity securities, individually or in the aggregate, to the business of the Companyassets;
(tj) adopt Sell, lease, license or otherwise dispose of any of its properties or assets, other than in the ordinary course of business;
(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities of KnowledgeWell or guarantee any debt securities of others, or create, extend, grant or issue any loan, mortgage, charge, debenture, guarantee, warranty or other form of security or agree to do so;
(l) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee, except payments made pursuant to standard written agreements outstanding on November 30, 1998;
(m) Adopt or amend any Company Employee Planemployee benefit plan, enter into or amend any Employee Agreement or enter into any employment contract, extend employment offers, pay or agree to pay any bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(un) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(o) Pay, discharge or satisfy, in an amount in excess of US$10,000 (in any one case) or US$50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the KnowledgeWell Financial Statements (or the notes thereto) or liabilities, claims or obligations arising in the ordinary course of business after October 31, 1998 or expenses consistent with the provisions of this Agreement incurred in connection with any transaction contemplated and permitted hereby;
(p) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(q) Incur any capital commitment in excess of US$25,000, or acquire any assets on lease, purchase, credit sale or deferred terms;
(r) Co-opt any person to its board of directors;
(s) Enter into any strategic alliance, affiliate agreement development or joint marketing arrangement or agreement;
(v) take any action to accelerate agreement except in the vesting schedule ordinary course of any of the outstanding Company Capital Stock;
(w) alter, or enter into any commitment to alter, its interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(x) cancel or amend any insurance policybusiness; or
(yt) take, commitTake, or agree in writing or otherwise to take, any of the actions described in Sections 6.1(a5.1(a) through 6.1(x(s) hereofabove, or any other action that would reasonably be expected to (i) prevent the Company KnowledgeWell from performing, performing or cause the Company KnowledgeWell not to perform, perform its covenants or agreements hereunder or (ii) cause or result in any of its respective representations and warranties contained herein being untrue or incorrect (such that the condition set forth in 8.2(a) would not be satisfied)hereunder.
Appears in 1 contract
Conduct Prior to the Closing Date. 6.1 Conduct Between the Execution Date and closing and physical transfer of Business Casino Assets on the Closing Date:
a. Seller shall give to Purchaser and Purchaser's officers, employees, agents, attorneys, consul- tants, accountants and lenders (designated by Purchaser as "PURCHASER'S AUTHORIZED REPRESENTATIVES") all of whom shall have agreed in writing to be bound by the confidentiality agreement between Seller and Purchaser dated September 30, 1997, reasonable access, during normal business hours upon reasonable notice, to all of the Company. During properties (both real and personal) included in the period from Assets and to the date of this Agreement books, contracts, documents and continuing until the earlier records of the termination of this Agreement Casino and shall furnish to Purchaser and Purchaser's Authorized Representatives such information as Purchaser or the Closing Date except as expressly contemplated by this Agreement such persons may at any time and the Related Agreements, the Shareholders agree from time to cause the Company to (i) conduct the Business of Company, except to the extent that Buyer time reasonably request.
b. Seller shall otherwise consent in writing (which consent will not be unreasonably withheld), in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, (ii) pay the debts and Taxes of the Company when due, (iii) pay or perform other material obligations when due, and, to the extent consistent with such business, to preserve intact the present business organizations of the Company and (iv) use its commercially reasonable best efforts to obtain the Required Approvals required under Section 8.2(c). At Purchaser's request, Seller shall provide all reasonable assistance needed to transfer to Purchaser, or to any person designated by Purchaser, any other transferable licenses and permits not included in the Required Approvals, provided that failure to obtain approvals for transfer of licenses and permits not included in the Required Approvals is not a condition precedent for closing for which Seller shall be held responsible.
c. Seller shall cause the Casino to carry on its business in the usual and ordinary course, consistent with past practices, and shall use its commercially reasonable efforts to preserve the Casino's business and the goodwill of its customers, suppliers and others having business relations with the Casino and to retain the business organization of the Casino intact, including using reasonable efforts to keep available the services of its present employees (other than those dismissed for cause or who voluntarily discontinue their employment), and to maintain all of its properties in good operating condition and repair, ordinary wear and tear excepted. Without limiting the present officers and Employees generality of the Company foregoing and preserve subject to the relationships provisions of Section 4.2 hereof, Seller shall pay, when due, all wages and benefits (including medical benefit claims) of Seller's employees currently when due in accordance with their terms, all indebtednesses to trade creditors and other obligations incurred in the ordinary course of the Company and with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the goal of preserving unimpaired the goodwill and ongoing businesses of the Company at the Closing DateCasino's business. The Shareholders’ Representative Seller shall promptly notify Buyer of any make no material event or occurrence or emergency involving the Company of which the Shareholders’ Representative becomes aware that arises during the period from the date of this Agreement and continuing until the earlier of the termination date of this Agreement or the Closing Date. Except as expressly contemplated by this Agreement and the Related Agreements, the Shareholders shall take reasonable steps to cause Company to not, change in marketing expenditures without the prior written consent of Buyer (Purchaser, provided, however, Seller shall be entitled to allocate such expenditures as Seller deems appropriate.
d. Without the prior written consent of Purchaser, which consent will shall not be unreasonably withheld):
(a) cause or permit , and without limiting the generality of any modifications, amendments or changes to the Charter Documents;
(b) undertake any expenditure, transaction or commitment exceeding $10,000 individually or $20,000 in the aggregateother provision of this Agreement, except in the ordinary course of business consistent with past practice business, Seller shall not:
(including the purchase of supplies i) hire any employee for a position listed on Schedule 6(d)(i) without prior notification to Purchaser's representative, ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇, or products for the sale to customers) or such other representative as may be designated by Purchaser;
(ii) sell, transfer or otherwise dispose of any commitment asset or transaction property, except for monies applied in payment of the type described Casino's liabilities in Section 4.13 hereofthe usual and ordinary course of business;
(ciii) payincur or commit to incur any capital expenditures (including, dischargewithout limitation, waive purchases, commitments or satisfy, in an amount offers to purchase real estate) in excess of $10,000 in any one case, 50,000 or $20,000 in which materially changes the aggregate, any claim, liability, right character of the Casino's operations without the written approval of ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), such other than the payment, discharge or satisfaction in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheetrepresentative as may be designated by Purchaser;
(div) adopt incur, assume or change accounting methods or practices guarantee any indebtedness secured by the Assets (including any change in depreciation or amortization policies or rates) other than as required by Swedish GAAP;except for the Principal Loan and the Subordinated Debt); or
(ev) make directly or change any material election in respect of Taxes not consistent with prior practices, adopt any new or change any accounting method in respect of Taxesindirectly, enter into or assume any contract, agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes or file any material Return unless a copy of such Return has been delivered to Buyer for review a reasonable time prior to filing and Buyer has approved such Return, which approval shall not be unreasonably withheld or delayed;
(f) materially revalue any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off notes or accounts receivable;
(g) declare, set aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any Company Capital Stock, or split, combine or reclassify any Company Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or directly or indirectly repurchase, redeem or otherwise acquire any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable for Company ordinary shares);
(h) increase or otherwise change the salary or other compensation payable or to become payable to any officer, director, employee, consultant or advisor, except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) of a severance payment, termination payment, bonus or other additional salary or compensation to any such person except payments made pursuant to written agreements existing on the date hereof and disclosed in the Company Disclosure Schedule or as required by law;
(i) sellobligation, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except properties or assets (whether tangible or intangible) which are not Company Intellectual Property and only commitment other than in the usual and ordinary course of business and consistent in accordance with past practicepractices and which would extend beyond the Closing Date.
e. Seller shall cause the Casino to maintain the insurance policies listed on Schedule 6(e) in full force and effect. If any of the said policies shall expire, and except sales and license the Casino shall use reasonable efforts to renew or replace the same prior to the expiration of products and services the expiring policies with policies from a reputable insurance carrier with a "Best's Rating" equal to or better than that of the existing carrier, containing insurance coverage in the ordinary course of business pursuant same or greater amount than the existing policies in substantially the same form and substance as the existing policies.
f. The Seller shall cooperate to provide documents relating to the Company’s standard form of end user license agreement Assets and terms relating to the revenues and conditions in the form previously provided to Buyer;
(j) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement providing for a loan by the Company to any Person, except for advances to employees for travel and business expenses and extensions of credit, in each case, in the ordinary course of business consistent with past practices;
(k) incur any indebtedness for borrowed money, amend the terms of any outstanding loan agreement, guarantee any indebtedness for borrowed money of any Person, issue or sell any debt securities or guarantee any debt securities of any Person;
(l) waive or release any right or claim of the CompanyCasino and other documents and information reasonably requested by Purchaser in connection with the closing of Purchaser's financing, including provided that Purchaser shall reimburse Seller for any write-off reasonable expenses incurred by Seller in connection with providing such documents or other compromise of any account receivable of the Company, other than amounts subject to reserve on the current balance sheet;
(m) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets;
(n) issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Capital Stock or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating the Company to issue or purchase any such shares or other convertible securities;
(o) (i) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property or enter into any agreement or modify or amend any existing agreement information and Seller shall have no obligation with respect to any Company Intellectual Property with any Person requirements or with respect to any Intellectual Property approvals required for such financing except as expressly provided for herein.
g. Seller shall provide Purchaser notice within 24 hours after receipt of any Person except in the ordinary course notice of business consistent with past practice, (ii) purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to the Intellectual Property of any Person, other than standard off the shelf software that is not used in the design or development of the Company’s products, (iii) enter into any agreement or modify or amend any existing agreement with respect to the development resignation received by the Company of any Intellectual Property with a third party, or (iv) propose or consent to any change to pricing or royalties set or charged by the Company to its customers or licensees, or the pricing or royalties set or charged by Persons who have licensed Company Intellectual Property to the Company;
(p) enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(q) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Lease Agreements;
(r) terminate, amend or otherwise modify (or agree to do so), or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(s) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities 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 or any equity securities, individually or in the aggregate, to the business of the Company;
(t) adopt or amend any Company Employee Plan, enter into or amend any Employee Agreement or enter into any employment contract;
(u) enter into any strategic alliance, affiliate agreement or joint marketing arrangement or agreement;
(v) take any action to accelerate the vesting schedule of any of the outstanding Company Capital Stock;
(w) alter, or enter into any commitment to alter, its interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(x) cancel or amend any insurance policy; or
(y) take, commit, or agree in writing or otherwise to take, any of the actions described in Sections 6.1(a) through 6.1(x) hereof, or any other action that would reasonably be expected to (i) prevent the Company Seller from performing, or cause the Company not to perform, its covenants or agreements hereunder or (ii) cause or result in any of its respective representations and warranties contained herein being untrue or incorrect (such that the condition set forth in 8.2(a) would not be satisfiedemployees whose position is listed on Schedule 6(d)(i).
h. Seller shall use commercially reasonable efforts to close the Principal Loan and the Subordinated Debt prior to midnight December 31, 1997. After closing of said financing, Seller shall remain current in its obligations to Lender on the Principal Loan and the Subordinated Debt and shall not allow an Event of Default (as defined in the Principal Loan or the Subordinate Debt as the case may be) to occur under the loan agreement and other loan documents executed in connection with the Principal Loan and the Subordinated Debt.
i. Purchaser shall use commercially reasonable efforts to close the financing with Lender that will be evidenced by a Senior Secured Note in the amount of $17,200,000.00 and by a Subordinated Note in the amount of $3,621,000.00 prior to midnight December 31, 1997. After closing of said financing, Purchaser shall remain current in its obligations to Lender on the Senior Secured Note and the Subordinated Note and shall not allow an Event of Default (as defined in the loan agreement made in connection with the Senior Secured Note and the Subordinated Note, as the case may be) to occur under the loan agreement and other loan documents in connection with the Senior Secured Note and the Subordinated Note.
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