Operation of Business Pending Closing. From and after the date hereof and prior to the Closing Date, except with the consent of Buyer, which shall not be unreasonably withheld or delayed, Seller shall: (a) conduct its Business in substantially the same manner as presently conducted, and refrain from entering into any transaction or Contract which (i) is not in the ordinary course of business and consistent with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program); (b) notify Buyer of (i) any unexpected Material emergency or other Material change in the normal course of the operation of the Business or the Purchased Assets, and (ii) any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege); (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.
Appears in 1 contract
Operation of Business Pending Closing. From Seller will use its reasonable best efforts to cause Transition to conduct its business according to its ordinary and after usual course of business and substantially in the manner heretofore conducted and will use its reasonable best efforts to preserve in all material respects the business organization and business relationships of Transition intact. By way of amplification and not limitation, Transition shall not, between the date hereof of this Agreement and prior to the Closing Date, directly or indirectly do, or propose or commit to do, any of the following, except as contemplated by this Agreement or as previously disclosed with reasonable specificity to Buyer, or except in the ordinary course of business and in a manner consistent with past practice and in compliance with applicable laws, without the prior written consent of Buyer, which shall such consent not to be unreasonably withheld or delayed, Seller shall:
(a) conduct Amend or otherwise change its Business in substantially Articles of Incorporation or Bylaws;
(b) Issue, deliver, sell, pledge, dispose of or encumber, or authorize or commit to the same manner as presently conductedissuance, and refrain from entering into any transaction sale, pledge, disposition or Contract which encumbrance of, (i) any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, but not limited to, stock appreciation rights or phantom stock), of Transition, or (ii) any assets of Transition except for sales of services and products in the ordinary course of business and in a manner consistent with past practice;
(c) Declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except as specifically contemplated by this Agreement);
(d) Reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) Acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof, (ii) incur any obligation for borrowed money, long term or short term debt, or issue any debt securities having a maturity of any duration, (iii) assume, guarantee, or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans, advances or capital contributions to, or investments in, any other person, (iv) enter into any employment contract or agreement or any other contract or agreement, or (v) enter into or amend any contract, agreement, commitment or arrangement with respect to any of the matters set forth in this section 7.1(e);
(f) Except as set forth in the Disclosure Schedule, as previously approved by Buyer or to the extent required under existing Plans, agreements or arrangements as in effect on the date of this Agreement, increase the compensation or fringe benefits of any directors, officers or employees of Transition, or grant any severance or termination pay not currently required to be paid under existing severance plans to, or enter into any employment, consulting or severance agreement with any present or former director, officer or other employee of Transition (other than an agreement entered into in exchange for a release by an employee, of any and all claims against Transition following such employee's termination of employment, but only if the aggregate amount payable to any terminated employee under any such agreement are paid by Seller without cost or expense to Buyer or Transition), or establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees of Transition, or grant any stock options or stock-based compensation to any directors, officers or employees of Transition (provided that Buyer acknowledges that the participation of employees of Transition in any Plans of Seller will terminate as a result of the Closing);
(g) Except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting practices or principles used by it;
(h) Except as specifically contemplated by this Agreement, make any tax election or settle or compromise any federal, state, local or foreign tax liability;
(i) Take any action, including, but not limited to, introducing a new service or product, which, in the good faith judgment of Transition, is reasonably likely to result in any claim that Transition has violated applicable laws, rules or regulations;
(j) Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Transition;
(k) Extend or shorten the time for payment of Transition's accounts receivable;
(1) Pay, discharge, satisfy or settle any claims, actions, suits, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, satisfaction or settlement (i) involving payments of not more than Twenty-Five Thousand Dollars ($25,000.00) in the aggregate, which also involve no form of injunctive relief, (ii) in the ordinary course of business and consistent with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past of liabilities reflected or reserved against in the Closing DateFinancial Statements, or (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or incurred in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program);
(b) notify Buyer of (i) any unexpected Material emergency or other Material change in the normal ordinary course of the operation of the Business or the Purchased Assets, business and (ii) any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege)consistent with past practice; (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.or;
Appears in 1 contract
Operation of Business Pending Closing. From Seller will not (and after will cause Subsidiary not to) engage in any practice, take any action, or enter into any transaction outside its ordinary course of business and will continue to operate (and cause Subsidiary to operate) the date hereof and prior to the Closing Date, except Purchased Assets in a manner consistent with the consent past practices of BuyerSeller and Subsidiary, which shall not be unreasonably withheld or delayedas applicable, Seller shalland accepted oilfield practice, including maintenance and repair of operating Vessels and related equipment. Without limiting the foregoing:
(a) conduct its Business other than a forced sale because of loss, Seller will not (and will cause Subsidiary not to) sell, transfer or assign any of the Purchased Assets;
(b) except as otherwise permitted by such contracts, Seller will not accelerate, terminate, modify or cancel any contracts or any other agreement, (or series of related agreements) to which Seller is a party or by which Seller is bound that is related to any of the Vessels involving a commitment of greater than $300,000.00 or a term of more than three (3) months, in substantially each case; without the same manner prior written consent of Buyer; provided, however, that no approval of Buyer shall be required in the event Seller accelerates, terminates, modifies or cancels any such agreement, contract or license as presently conducteda result of Seller’s not being paid thereunder, after commercially reasonable efforts have been made by Seller to obtain payment, or as a result of a material default by the other party to such contract;
(c) Seller will not impose or permit to be imposed (and refrain from entering into will cause Subsidiary not to impose or permit to be imposed) any transaction Encumbrance upon any of the Purchased Assets that will not be fully released at Closing;
(d) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage, or Contract which material loss of any Purchased Asset;
(ie) is not Seller will perform (and cause Subsidiary to perform) in all material respects their respective obligations under all agreements that are related to any of the Purchased Assets;
(f) Seller will continue to purchase supplies and similar items in the ordinary course of business business; and consistent will continue to replenish inventory and spare parts in accordance with past practice practices;
(g) Seller will continue to maintain and operate the Vessels and the Real Property, and will cause Subsidiary to maintain and operate the Real Property, in conformity with customary practices of Seller and Subsidiary, as applicable, for other vessels and property owned by it and industry standards and practices for vessels and property of such type;
(h) after the date hereof, Seller shall not (and shall cause Subsidiary not to) enter into any Property Agreement with any Affiliate of Seller or any other Property Agreement which cannot be canceled without penalty by the then current owner of the Real Property, upon the giving of no more than thirty (30) days notice to the other party, unless such Property Agreement (i) is approved in advance in writing by Buyer, or (ii) requires Seller will not be binding on Buyer or attach to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past any of the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer Purchased Assets after the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program)Effective Time;
(bi) notify Buyer of after the date hereof, Seller shall (and shall cause Subsidiary to) (i) not modify, cancel, change or enter into any unexpected Material emergency Lease, agreement or other Material change in instrument which would constitute an Encumbrance or which would be outside the normal course scope of maintaining and operating the operation Real Property, without the prior written consent of the Business or the Purchased AssetsBuyer, and (ii) not remove any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege); (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets associated with the Land or Improvements unless such item is replaced with an item of any condition at least equal value that is properly suited for its intended purpose;
(j) Seller will maintain (and cause Subsidiary to maintain) such property insurance insuring the Real Property against loss or event which could reasonably be expected to result in such a Material Adverse Changedamage as is currently maintained by Seller and Subsidiary; and and
(ek) Seller will use its commercially reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's keep intact its relationships with its lessors, licensors, suppliers, customers, and employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.
Appears in 1 contract
Operation of Business Pending Closing. From Seller (i) represents and warrants that from and after the date hereof Interim Balance Sheet Date it has operated, and caused Company Group to operate, the businesses of Company Group, and (ii) covenants and agrees that, absent Buyer’s prior written consent to the Closing Datecontrary (which consent, except with in the consent case of Buyerclauses (i) through (t) or (u) (only insofar as such clause (u) relates to any matter contemplated by clauses (i) through (t)) below, which shall will not be unreasonably withheld or delayed, Seller shall:and in the case of all other clauses, may be granted or withheld in Buyer’s sole discretion) from and after the date of this Agreement to the Closing Date it will operate, and cause Company Group to operate, the businesses of Company Group (including in each case the imposition of any Liability or obligation of any kind, whether accrued, absolute, contingent, unliquidated or otherwise and whether due or to become due (including any liability for breach of contract, breach of warranty, torts, infringements, claims or lawsuits) or the disposition of any asset), in a manner consistent with the Ordinary Course of Business and in accordance with, and making the disbursements contemplated by, the Interim Operating Plan (as adjusted in the amounts and for the specific expenditures as set forth on Schedule 7.4), and in accordance with the Supplemental Interim Operating Plans, and it has not and will not, and has caused and will cause Company Group not to, do any of the following (except as otherwise specifically contemplated by the Interim Operating Plan, the Supplemental Interim Operating Plans, or this Agreement):
(a) conduct its Business in substantially make any changes to the same manner as presently conducted, and refrain from entering into any transaction or Contract which (i) is not in the ordinary course of business and consistent with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance Organizational Documents of any kind, individually or Person in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program)Company Group;
(b) notify Buyer issue or sell any Company Equity Rights;
(c) redeem, repurchase or otherwise reacquire any Company Equity Rights;
(d) enter into or modify any agreement or other arrangement between Company Group, on the one hand, and Seller Group, on the other;
(e) adopt or authorize any plans providing for the issuance of Company Equity Rights;
(f) make any other changes to the capital structure of any Person in Company Group;
(g) make any filing under bankruptcy or insolvency laws, or permit any filing made under such laws by a third party to remain unopposed for longer than 60 days;
(h) enter into or amend any arrangement restricting the ability of any Person in Company Group (or purporting to restrict the ability of any equity holder of Company) from conducting business in any manner or in any geographic area except for geographic restrictions on VHS, DVD or theatrical distribution in the Ordinary Course of Business;
(i) commence or settle any unexpected Material emergency Litigation that will or could require the payment in excess of $200,000 or, in the case of the settlement of any such Litigation, any continuing material Liability on the part of any Person in Company Group;
(j) enter into or amend any Contracts or other Material change arrangements providing for the payment or receipt of consideration in excess of $300,000;
(k) terminate the employment of any of Key Person, or take, or fail to take, any action that would permit a Key Person to terminate his or her employment for “good reason” as specified in any agreement relating to such Key Person’s employment;
(l) enter into or modify any employment agreement;
(m) enter into or modify any lease of real property, terminate any lease of real property or extend the term or otherwise amend or modify any lease of real property, in each case where such lease would be for a term continuing for more than one year after the Closing Date or would involve gross lease payments in excess of $200,000 annually or $500,000 in the normal course of the operation of the Business aggregate;
(n) secure any outstanding unsecured Indebtedness, provide any additional security for any outstanding secured Indebtedness or the Purchased Assets, and (ii) grant or suffer to exist any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith Lien on any property (other than documents subject to the attorney-client privilegePermitted Liens); ;
(co) refrain from committing to pay or satisfy any new trade claims;
(p) cancel any debts or industry show space waive any tangible or signage intangible claims or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; rights;
(dq) promptly notify Buyer in writing of the occurrence of any Material Adverse Change incur, assume or become obligated with respect to any item of Indebtedness or other long-term Liability (and any of which items of Indebtedness or Liabilities specifically contemplated by the Business Interim Operating Plan will be taken into account in determining the Cash Consideration Adjustments);
(r) accelerate or prepay any outstanding Indebtedness;
(s) make any advance or loan to employees, directors or officers other than customary and reasonable reimbursement of business expenses in a manner consistent with past practices or forgive any such loan previously made;
(t) make any material change to Tax or accounting practices or enter into any material agreement or settlement with any Taxing Authority;
(u) from the Purchased Assets Interim Balance Sheet Date through the Closing Date (inclusive), pay any dividend or otherwise make any distribution from Company Group to Seller or any Affiliate of Seller (other than any condition Person in Company Group), including the Deposited Escrow Funds and any proceeds from the sale of Mainframe, except as contemplated by Section 3.3; or
(v) enter into any Contract or event which could reasonably be expected arrangement to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit do any of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Businessforegoing. Notwithstanding anything contained herein to the contrary, Seller the provisions of this Section 7.4 shall apply with respect to Mainframe only for the period from the Interim Balance Sheet Date through July 31, 2006, and the standard to be applied to covenants regarding Mainframe shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to based on commercially reasonable efforts of Seller.
Appears in 1 contract
Operation of Business Pending Closing. From Seller will use its reasonable best efforts to cause MSCTC to conduct its business according to its ordinary and after usual course of business and substantially in the manner heretofore conducted and will use its reasonable best efforts to preserve in all material respects the business organization and business relationships of MSCTC intact. By way of amplification and not limitation, ▇▇▇▇▇, MLD and MSCTC each shall not, between the date hereof of this Agreement and prior to the Closing Date, directly or indirectly do, or propose or commit to do, any of the following, except as contemplated by this Agreement or as previously disclosed with the consent of reasonable specificity to Buyer, which shall not be unreasonably withheld or delayed, Seller shall:
(a) conduct its Business in substantially the same manner as presently conducted, and refrain from entering into any transaction or Contract which (i) is not except in the ordinary course of business and in a manner consistent with past practice and in compliance with applicable laws, without the prior written consent of Buyer, such consent not to be unreasonably withheld or delayed: (iia) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing DateAmend or otherwise change their Articles of Incorporation, (iii) creates a new consignment arrangement By-Laws or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program);
Partnership Agreement; (b) notify Buyer Issue, deliver, sell, pledge, dispose of or encumber, or authorize or commit to the issuance, sale, pledge, disposition or encumbrance of, (i) any unexpected Material emergency shares of capital stock of any class, or any options, warrants, convertible securities or other Material change in the normal course rights of the operation any kind to acquire any shares of the Business capital stock, or the Purchased Assetsany other ownership interest (including, and but not limited to, stock appreciation rights or phantom stock), of ▇▇▇▇▇ or MLD, or (ii) any Litigation (assets of ▇▇▇▇▇, MLD or written communications indicating that MSCTC, except for sales of services and products in the same may be reasonably contemplated), affecting the Business or the Purchased Assets, ordinary course of business and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege)a manner consistent with past practice; (c) refrain from committing to Declare, set aside, make or pay any new trade dividend or industry show space other distribution, payable in cash, stock, property or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change otherwise, with respect to the Business or the Purchased Assets or any of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and its capital stock (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.except as specifically contemplated by this
Appears in 1 contract
Operation of Business Pending Closing. From and after the date hereof and prior to the Closing Date, other than as described on Schedule 4.1, except with the prior written consent of Buyer, which shall not be unreasonably withheld or delayedPurchaser and except as necessary to effect the transactions contemplated by this Agreement, Seller shallshall cause the Company to:
(a) conduct its Business business in substantially the same manner as presently conducted, conducted and refrain from (i) entering into any transaction or Contract which (i) is not in the ordinary course of business and consistent with past practice practice, and (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Datemaking changes in its methods of management, (iii) creates a new consignment arrangement marketing or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program)operations;
(b) consult with Purchaser prior to undertaking any new business opportunity not in the ordinary course of business and consistent with past practice, and not undertake such new business opportunity without the prior written consent of Purchaser;
(c) confer on a regular and frequent basis with one or more designated representatives of Purchaser to report material operational matters and to report the general status of ongoing operations;
(d) notify Buyer Purchaser of (i) any unexpected Material emergency or other Material change in the normal course of the Company's business or in the operation of the Business or the Purchased Assetsits properties, and (ii) of any Litigation governmental complaints, investigations, hearings (or written communications indicating that the same may be reasonably contemplated), affecting ) or adjudicatory proceedings involving any material property of the Business or the Purchased AssetsCompany, and keep Buyer Purchaser fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith therewith;
(e) not enter into any new employment Contract or, except in the ordinary course of business, and consistent with past practice, any commitment to employees (including any commitment to pay retirement or other benefits);
(f) not increase the compensation (including fringe benefits) payable or to become payable to any officer, director or employee of the Company, except general hourly rate increases and normal merit increases for employees (other than documents subject to officers) made in the attorney-client privilege); ordinary course of business and consistent with past practice;
(cg) refrain from committing to any new trade not change the banking or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing safe deposit arrangements of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve Company, except for the benefit deposit and withdrawal of funds in the Buyer ordinary course of business;
(i) Seller's relationships with its employeesnot create or incur any Indebtedness for Money Borrowed, customers and suppliers and (ii) not create or incur any other Indebtedness, except in the goodwill ordinary course of business, (iii) not enter into or terminate any lease of Real Property, or (iv) not create any Lien on any of its assets other than Permitted Liens;
(i) not redeem, purchase or otherwise acquire any shares of Common Stock or split, combine or otherwise similarly change the outstanding shares of Common Stock, or authorize the creation or issuance of or issue or sell any shares of its capital stock, or any securities or obligations convertible into or exchangeable for, or give any Person any right to acquire from it, any shares of its capital stock;
(j) not make or commit to make any capital expenditures in excess of $100,000 individually or $500,000 in the aggregate, or enter into any lease of capital equipment as lessee or lessor;
(k) not sell any asset or make any commitment relating to the sale of its assets other than in the ordinary course;
(l) not make any changes in the accounting methods or practices of the Business. Notwithstanding anything herein Company, except for changes in its accounting methods or practices that may be necessary or appropriate as a result of changes in applicable accounting principles or Laws;
(m) not take any action, or omit to take any action, which would cause the contrary, Seller shall representations and warranties contained in Article 2 hereof to be permitted untrue or incorrect in any material respect at Closing; and
(n) not make any agreement or commitment which will result in or cause to terminate occur a violation of any distributor and/or seller representative or agent whose performance is not satisfactory to Sellerof the items contained in paragraphs (a) through (m).
Appears in 1 contract
Sources: Stock Purchase Agreement (Commonwealth Industries Inc/De/)
Operation of Business Pending Closing. From Seller will not engage in any practice, take any action, or enter into any transaction outside its ordinary course of business and after will continue to operate the date hereof Purchased Assets in a manner consistent with Seller’s past practices and prior to accepted oilfield practice, including maintenance and repair of operating Drilling Rigs and related equipment. Without limiting the Closing Date, except with the consent of Buyer, which shall not be unreasonably withheld or delayed, Seller shallforegoing:
(a) conduct other than a forced sale because of loss, Seller will not sell, transfer or assign any of the Purchased Assets;
(b) except as otherwise permitted by such contracts, Seller will not accelerate, terminate, modify or cancel any daywork, turnkey or footage contracts or any other agreement, contract or license (or series of related agreements, contracts and licenses) to which Seller is a party or by which Seller is bound that is related to any of the Drilling Rigs involving a commitment of greater than $50,000 or a term of more than three (3) months, in each case, without the prior written consent of Buyer; provided, however, that no approval of Buyer shall be required in the event Seller accelerates, terminates, modifies or cancels any such agreement, contract or license as a result of Seller’s not being paid thereunder, after commercially reasonable efforts have been made by Seller to obtain payment, or as a result of a material default by the other party to such contract;
(c) Seller will not impose or permit to be imposed any Encumbrance upon any of the Purchased Assets that will not be fully released at Closing;
(d) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage, or loss of any Purchased Asset;
(e) Seller will perform in all material respects its Business in substantially obligations under all agreements that are related to any of the same manner as presently conducted, Purchased Assets;
(f) Seller will continue to purchase supplies and refrain from entering into any transaction or Contract which (i) is not similar items in the ordinary course of business business, and consistent will continue to replenish inventory, spare parts and tubulars in accordance with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program);practices; and
(bg) notify Buyer of (i) any unexpected Material emergency or other Material change in the normal course of the operation of the Business or the Purchased AssetsSeller will use commercially reasonable efforts to keep intact its relationships with lessors, licensors, suppliers, customers, and (ii) any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege); (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.
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Operation of Business Pending Closing. From Seller will not engage in any practice, take any action, or enter into any transaction outside its ordinary course of business and after will continue to operate the date hereof Purchased Assets in a manner consistent with Seller’s past practices and prior to accepted oilfield practice, including maintenance and repair of the Closing Date, except with Drilling Rig and related equipment. Without limiting the consent of Buyer, which shall not be unreasonably withheld or delayed, Seller shallforegoing:
(a) conduct other than a forced sale because of loss, Seller will not sell, transfer or assign any of the Purchased Assets;
(b) except as otherwise permitted by such contracts, Seller will not accelerate, terminate, modify or cancel any day work, turnkey or footage contracts or any other agreement, contract or license (or series of related agreements, contracts and licenses) to which Seller is a party or by which Seller is bound that is related to the Drilling Rig involving a commitment of greater than $50,000 or a term of more than three (3) months, in each case, without the prior written consent of Buyer; provided, however, that no approval of Buyer shall be required in the event Seller accelerates, terminates, modifies or cancels any such agreement, contract or license as a result of Seller’s not being paid thereunder, after commercially reasonable efforts have been made by Seller to obtain payment, or as a result of a material default by the other party to such contract;
(c) Seller will not impose or permit to be imposed any Encumbrance upon any of the Purchased Assets that will not be fully released at Closing;
(d) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage, or loss of any Purchased Asset;
(e) Seller will perform in all material respects its Business in substantially obligations under all agreements that are related to any of the same manner as presently conducted, Purchased Assets;
(f) Seller will continue to purchase supplies and refrain from entering into any transaction or Contract which (i) is not similar items in the ordinary course of business business, and consistent will continue to replenish inventory, spare parts and tubulars in accordance with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program);practices; and
(bg) notify Buyer of (i) any unexpected Material emergency or other Material change in the normal course of the operation of the Business or the Purchased AssetsSeller will use commercially reasonable efforts to keep intact its relationships with lessors, licensors, suppliers, customers, and (ii) any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege); (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Seller shall be permitted to terminate any distributor and/or seller representative or agent whose performance is not satisfactory to Seller.
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