Operation of Parent. From the date of hereof to the Closing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted by or provided in this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements, or except as consented to in writing by the Sellers' Representatives (which consent shall not be unreasonably withheld or delayed), Parent agrees that: (a) Parent shall, and shall cause each Parent Subsidiary to, conduct its business only in the ordinary and usual course and substantially in the same manner as heretofore conducted. (b) Parent shall, and shall cause US Acquisition Sub and US Acquisition Sub II to, perform all acts to be performed by it pursuant to this Agreement, any other Operative Agreements and the Integration Plan and the Integration Agreements and shall refrain from taking any action (other than any action permitted by or provided in this Agreement) that would result in the representations and warranties of Parent, US Acquisition Sub or US Acquisition Sub II hereunder becoming untrue in any material respect or any of the conditions to Closing not be satisfied. Without limiting the generality of the foregoing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted or contemplated by this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements or except as consented to in writing by the Sellers' Representatives (which consent will not be unreasonably withheld or delayed), from the date hereof to the Closing, Parent shall not, and shall cause each Parent Subsidiary not to: (i) amend its certificate of incorporation or bylaws (or similar organizational documents) or adopt or pass further regulations or resolutions inconsistent therewith; (ii) other than in the ordinary course of business consistent with past practice (A) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of any other Person (other than any Parent Subsidiary), or (B) make any loans, advances or capital contributions to, or investments in, any other Person (other than to any Parent Subsidiary), or enter into any material Contract; (iii) acquire, by merging or consolidating with or by purchasing equity interests in or assets of any other Person or otherwise, any material assets of or any equity interests in any other Person; (iv) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than (A) the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, or as required by their terms, of liabilities reflected or specifically reserved against in or contemplated by the Parent Interim Balance Sheet, (B) claims, liabilities or obligations that are incurred after the date thereof in the ordinary course of business consistent with past practice or that are immaterial liabilities if not incurred in the ordinary course of business or (C) the payment discharge or satisfaction in the ordinary course of business consistent with past practice of obligations under any Contracts or Licenses to which Parent or any Parent Subsidiary is bound as of the date hereof or entered into after the date of this Agreement in accordance with the limitations set forth in this Section 6.1; (v) pay, discharge or satisfy any material Lien unless required by the terms thereof or the documents evidencing or governing any related indebtedness;
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Operation of Parent. From the date of hereof to the Closing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted by or provided in this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements, or except as consented to in writing by the Sellers' Representatives (which consent shall not be unreasonably withheld or delayed), Parent agrees that:
(a) Parent shall, and shall cause each Parent Subsidiary to, conduct its business only in the ordinary and usual course and substantially in the same manner as heretofore conducted.
(b) Parent shall, and shall cause US Acquisition Sub and US Australia Acquisition Sub II to, perform all acts to be performed by it pursuant to this Agreement, any other Operative Agreements and the Integration Plan and the Integration Agreements and shall refrain from taking any action (other than any action permitted by or provided in this Agreement) that would result in the representations and warranties of Parent, US Acquisition Sub or US Australia Acquisition Sub II hereunder becoming untrue in any material respect or any of the conditions to Closing not be satisfied. Without limiting the generality of the foregoing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted or contemplated by this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements or except as consented to in writing by the Sellers' Representatives (which consent will not be unreasonably withheld or delayed), from the date hereof to the Closing, Parent shall not, and shall cause each Parent Subsidiary not to:
(i) amend its certificate of incorporation or bylaws (or similar organizational documents) or adopt or pass further regulations or resolutions inconsistent therewith;
(ii) other than in the ordinary course of business consistent with past practice (A) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of any other Person (other than any Parent Subsidiary), or (B) make any loans, advances or capital contributions to, or investments in, any other Person (other than to any Parent Subsidiary), or enter into any material Contract;
(iii) acquire, by merging or consolidating with or by purchasing equity interests in or assets of any other Person or otherwise, any material assets of or any equity interests in any other Person;
(iv) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than (A) the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, or as required by their terms, of liabilities reflected or specifically reserved against in or contemplated by the Parent Interim Balance Sheet, (B) claims, liabilities or obligations that are incurred after the date thereof in the ordinary course of business consistent with past practice or that are immaterial liabilities if not incurred in the ordinary course of business or (C) the payment discharge or satisfaction in the ordinary course of business consistent with past practice of obligations under any Contracts or Licenses to which Parent or any Parent Subsidiary is bound as of the date hereof or entered into after the date of this Agreement in accordance with the limitations set forth in this Section 6.1; ;
(v) pay, discharge or satisfy any material Lien unless required by the terms thereof or the documents evidencing or governing any related indebtedness;
(vi) permit or allow any of its respective material properties or assets, real, personal or mixed, tangible or intangible, to be subjected to any Lien, except for any Permitted Liens incurred in the ordinary course of business consistent with past practice;
(vii) cancel any material debts or claims, or waive any rights of material value or, sell, transfer or convey any of its respective material properties or assets, real, personal or mixed, tangible or intangible;
(viii) enter into any employment or severance agreement with any partner, officer, director, shareholder or employee thereof who receives or would receive annual compensation in excess of US$100,000;
(ix) enter into or amend any bonus, pension, profit- sharing or other plan, commitment, policy or arrangement in respect of the compensation payable or to become payable to any of its officers, directors or employees (other than salary increases in the ordinary course of business consistent with past practice to employees who are not officers or directors of Parent which, in the aggregate, are not material and year- end bonuses in the ordinary course of business consistent with past practice);
(x) make any pension, retirement, profit sharing, bonus or other employee welfare or benefit payment or contribution, other than in the ordinary course of business consistent with past practice, or voluntarily accelerate the vesting of any compensation or benefit;
(xi) declare, pay or make, or set aside for payment or making, any dividend or other distribution in respect of its capital stock or other securities, or directly or indirectly redeem, purchase or otherwise acquire any of its capital stock or other securities, other than dividends paid or payable by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary;
Appears in 1 contract
Operation of Parent. From the date of hereof to the Closing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted by or provided in this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements, or except as consented to in writing by the Sellers' Representatives (which consent shall not be unreasonably withheld or delayed), Parent agrees that:
(a) Parent shall, and shall cause each Parent Subsidiary to, conduct its business only in the ordinary and usual course and substantially in the same manner as heretofore conducted.
(b) Parent shall, and shall cause US Acquisition Sub and US Acquisition Sub II to, perform all acts to be performed by it pursuant to this Agreement, any other Operative Agreements and the Integration Plan and the Integration Agreements and shall refrain from taking any action (other than any action permitted by or provided in this Agreement) that would result in the representations and warranties of Parent, US Acquisition Sub or US Acquisition Sub II Parent hereunder becoming untrue in any material respect or any of the conditions to Closing not be satisfied. Without limiting the generality of the foregoing, except as described in Section 6.1 of the Parent Disclosure Schedule or as otherwise permitted or contemplated by this Agreement, the other Operative Agreements or the Integration Plan or the Integration Agreements or except as consented to in writing by the Sellers' Representatives (which consent will not be unreasonably withheld or delayed), from the date hereof to the Closing, Parent shall not, and shall cause each Parent Subsidiary not to:
(i) : amend its certificate of incorporation or bylaws (or similar organizational documents) or adopt or pass further regulations or resolutions inconsistent therewith;
(ii) ; other than in the ordinary course of business consistent with past practice (A) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of any other Person (other than any Parent Subsidiary), or (B) make any loans, advances or capital contributions to, or investments in, any other Person (other than to any Parent Subsidiary), or enter into any material Contract;
(iii) ; acquire, by merging or consolidating with or by purchasing equity interests in or assets of any other Person or otherwise, any material assets of or any equity interests in any other Person;
(iv) ; pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than (A) the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, or as required by their terms, of liabilities reflected or specifically reserved against in or contemplated by the Parent Interim Balance Sheet, (B) claims, liabilities or obligations that are incurred after the date thereof in the ordinary course of business consistent with past practice or that are immaterial liabilities if not incurred in the ordinary course of business or (C) the payment discharge or satisfaction in the ordinary course of business consistent with past practice of obligations under any Contracts or Licenses to which Parent or any Parent Subsidiary is bound as of the date hereof or entered into after the date of this Agreement in accordance with the limitations set forth in this Section 6.1; (v) pay, discharge or satisfy any material Lien unless required by the terms thereof or the documents evidencing or governing any related indebtedness;; permit or allow any of its respective material properties or assets, real, personal or mixed, tangible or intangible, to be subjected to any Lien, except for any Permitted Liens incurred in the ordinary course of business consistent with past practice; cancel any material debts or claims, or waive any rights of material value or, sell, transfer or convey any of its respective material properties or assets, real, personal or mixed, tangible or intangible; enter into any employment or severance agreement with any partner, officer, director, shareholder or employee thereof who receives or would receive annual compensation in excess of US$100,000; enter into or amend any bonus, pension, profit- sharing or other plan, commitment, policy or arrangement in respect of the compensation payable or to become payable to any of its officers, directors or employees (other than salary increases in the ordinary course of business consistent with past practice to employees who are not officers or directors of Parent which, in the aggregate, are not material and year-end bonuses in the ordinary course of business consistent with past practice); make any pension, retirement, profit sharing, bonus or other employee welfare or benefit payment or contribution, other than in the ordinary course of business consistent with past practice, or voluntarily accelerate the vesting of any compensation or benefit; declare, pay or make, or set aside for payment or making, any dividend or other distribution in respect of its capital stock or other securities, or directly or indirectly redeem, purchase or otherwise acquire any of its capital stock or other securities, other than dividends paid or payable by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; other than pursuant to the Parent Stock Plans, issue, allot, create, grant or sell any shares of its capital stock or any equity security or issue, grant or sell any security, option, warrant, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the issuance, allotment, sale, pledge or other disposition of any shares of its capital stock or other equity securities; make any change in any accounting or tax principles, practices or methods, except as may be required by applicable generally accepted accounting principles or applicable Law; make any material tax election or settle or compromise any material income tax liability; terminate or amend or fail to perform any of its obligations under any material Contract to which it is a party or by which it or any of its assets are bound; enter into any material joint venture or partnership; settle any material lawsuits, claims, actions, investigations or proceedings; or authorize or enter into any obligations or commitment (or otherwise agree) to take any of the foregoing actions.
(c) Parent shall, and shall cause each Parent Subsidiary to, give prompt notice to the Sellers' Representatives of (i) any Parent Material Adverse Effect, (ii) any change which makes it likely that any representation or warranty set forth in this Agreement regarding Parent will not be true in any material respect at the Integration Commencement Date or the Closing, as applicable, or would be likely to cause any condition to the obligations of any party hereto to consummate the transactions contemplated by this Agreement not to be satisfied or (iii) the failure of Parent to comply with or satisfy any covenant or agreement to be complied with or satisfied by it pursuant to this Agreement and the other Operative Agreements which would likely cause a condition to the obligations of any party to effect the transactions contemplated by this Agreement not to be satisfied.
(d) Parent shall, and shall cause each Parent Subsidiary to, use commercially reasonable efforts to take such action as may be necessary to maintain, preserve, renew and keep in full force and effect its existence and its material rights and franchises.
(e) Parent shall, and shall cause each Parent Subsidiary to, use commercially reasonable efforts to preserve intact the existing relationships with its clients and employees and others with respect to the businesses with which it has business relationships. Parent shall, and shall cause each Parent Subsidiary to, permit the Shareholders' Representatives or their designees to contact suppliers, customers and employees in coordination with the personnel of Parent or such Parent Subsidiary for purposes of facilitating the transactions contemplated hereby.
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