Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing. (b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to: (i) amend its articles of incorporation or by-laws (or similar organizational documents); (ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company; (iii) make any change in the Business or the operations of the Company outside the ordinary course of business; (iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; (v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof; (vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances; (vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice; (viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business; (ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice; (x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice; (xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates; (xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby; (xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices; (A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes; (xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP; (xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or (xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates. (c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 3 contracts
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Impac Mortgage Holdings Inc), Equity Purchase Agreement
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with From the written approval of Buyer------------------------------------ date hereof through the Closing Date, which Buyer agrees Parent shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Companies to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course in accordance with past practice and substantially as presently operatedin compliance with all applicable Requirements of Law, including Environmental Laws. Consistent with the foregoing, Seller Parent shall cause the Company to keep and maintain the material assets each of the Company in good operating condition and repair and shall Companies to use its reasonable best efforts consistent with good business practice to (i) maintain the business organization of the Company intact Companies intact, (ii) keep available the services of any key employees of the Companies and (iii) preserve the goodwill and beneficial relationships of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingCompanies.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth in Schedule -------------- -------- 7.4, except as contemplated by this Agreement or except with the express written --- approval of Buyer (which which, in the case of clauses (ii), (iii), (vi), (ix), (x) and (xviii), Buyer agrees shall not be unreasonably withheld or delayed), Seller Parent shall not, with respect to cause each of the Equity Interests, the Company or the Business, and Seller cause the Company Companies not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations its operations, except such changes as may be required to comply with any applicable Requirements of the Company outside the ordinary course of businessLaw;
(ivii) make any capital expenditure or enter into any contract or commitment therefor therefor, other than in the ordinary course of the Business, which is in excess of $50,000; provided that, ;
(iii) other than in the ordinary course of business consistent with past practicethe Business, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.14(a) or 5.14(b) if in effect on the ---------------- ------- date hereof, hereof or amend any Business Agreement in any material respect;
(Biv) enter into any Contract which contract that contains a "change of control" provision that would require give the consent of other party a third party in connection with right to terminate such contract upon the consummation of the transactions contemplated by this Agreement hereby or under which the consummation of the transactions contemplated hereby would constitute a default;
(Cv) modify, amend, terminate enter into any contract for the purchase of real property or grant exercise any consent or waiver under any Company Agreement or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereof;Schedule 5.9; ------------
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) its properties, rights or assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the Equity Interests or (B) the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of it or pay, settle or discharge any claims claims/litigation, proceedings, actions or litigation) liabilities, other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness for Borrowed Money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentscash) to Seller Parent or any of its Affiliates;
(xii) institute any material increase in any profit-sharingbenefit provided, bonusor loan or advance any money or property, incentiveto any present or former director, deferred compensationofficer, insurance, pension, retirement, medical, hospital, disability, welfare consultant or other employee benefit plan with respect to employees of any of the CompanyCompanies, except for payments related to stay bonusother than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, transaction completion bonus, severance payments Parent Plan or other similar payments made on or prior to the Closing Date as a result Requirements of this Agreement or the transactions contemplated herebyLaw;
(xiii) make any material increase change in the compensation of the employees of the Companyits employees, other than changes made in accordance with normal compensation practices of the Companies or pursuant to existing contractual commitments and consistent with past compensation practices, or grant any severance or termination pay to any of its employees or amend the form of retention and severance agreement contained in Schedule 7.4; ------------
(xiv) establish, adopt, enter into, amend or terminate any Company Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence on the date hereof, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirement of Law;
(Axv) make any material change in the accounting policies applied in the preparation of the Interim Financial Statements, unless such change is required by GAAP;
(xvi) make any change in its charter, by-laws or other organizational document or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock);
(xvii) split, combine or reclassify any shares of its capital stock or partnership or membership interests or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares or interests, except for cash dividends and distributions payable by a Conveyed Companies Subsidiary to any of the Companies, Parent or Affiliates of Parent;
(xviii) except as required by applicable Requirements law, and except in cases where doing so would not have a material adverse consequence to Buyer Group Members with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of Lawsuch Straddle Period beginning after the Closing Date, prepare or file any Tax Return in a manner inconsistent with past practice or, on any such Tax Return, or take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or prior periods in filing similar Tax Returns in prior periods (including positionsany such position, elections election or methods that method which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable or accelerating deductions to periods ending on for which Parent is liable);
(xix) amend any Tax Returns or before settle or compromise any proceeding relating to Tax liabilities of any Company, in either case if doing so would, or would reasonably be expected to, materially adversely affect any Buyer Group Member with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date);
(xx) enter into or amend any aviation, manufacturing or transportation customer contract, other than new contracts with existing customers and amendments to existing contracts, in each case, where the terms of such new contract or amendment are not materially less favorable to the Companies than existing contracts with such customers;
(Bxxi) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement joint venture, partnership or similar agreement related arrangement or acquire or agree to Taxes, otherwise settle any dispute relating to Taxesacquire by merging or consolidating with, or request by purchasing a substantial portion of the assets of, or by any ruling other manner, any business or similar guidance with respect to Taxesany corporation, limited liability company, partnership, joint venture association or other business organization or division thereof;
(xvxxii) make merge or consolidate with or into any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize other Person or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company dissolve or transfer any loans secured by real estate to the Companyliquidate; or
(xviixxiii) make authorize, commit or agree, whether in writing or otherwise, to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 3 contracts
Sources: Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by From the date of this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after until the Closing.
(b) In addition, and without limiting Section 7.4(a)Sellers shall, except as otherwise expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)as consented to in writing by Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in operate the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, . Without limiting the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf generality of the Company foregoing, Sellers shall: (i) use commercially reasonable efforts to keep and maintain the Purchased Assets in good operating condition and repair; (ii) maintain the business organization of the Business intact; (iii) use commercially reasonable efforts to preserve the goodwill of the regulators, customers, suppliers, contractors, licensors, employees and others having business relations with the Business; (iv) not take or fail to take any action that could result in the occurrence of an “Additional Default Event” (as defined in that certain Letter Agreement, dated as of October 3, 2023, by and between Seller 1 and Vertical Investors, LLC (the “Letter Agreement”)); and (v) use best efforts to comply with the terms and conditions of the Letter Agreement.
(b) Except as expressly contemplated by this Agreement or with the express written approval of Buyer, no Seller shall, directly or indirectly:
(i) sell, lease, license, assign, transfer or otherwise dispose of, or agree to sell, lease, license, assign, transfer or otherwise dispose of, (A) any loans secured by real estate assets that are material to the CompanyBusiness (other than the Excluded Assets) or (B) any assets to an equity holder of a Seller or any of their respective Affiliates;
(ii) declare or make any dividend or payment of cash to, or pay, loan or advance any amount to, any equity holder of a Seller or any of their respective Affiliates;
(iii) make any material change in the Business or its operations, acquire (including by merger or consolidation) any business or entity, or otherwise acquire any material asset;
(iv) adopt a plan of complete or partial liquidation, dissolution, merger or consolidation;
(v) amend any of its Organizational Documents;
(Avi) increase or decrease the level of inventory of the Business or make any change in the inventory purchasing patterns, stocking levels or production practices of the Business;
(vii) take actions that may result, or would result, in payments to, or accounts receivable being created for the benefit of, a Seller sooner than is usual in the ordinary course of business consistent with past practice;
(viii) grant to any Employee of a Seller any increase in compensation (other than increases in the ordinary course of business consistent with past practice to employees that are not in senior management or executive positions) or pay or agree to pay to any Employee of a Seller any bonus, severance or termination payment not previously agreed upon and provided in any Benefit Plan or other written agreements made available to Buyer (or otherwise required by applicable law);
(ix) make any material change in the manner in which a Seller extends discounts, credits or warranties;
(x) make any capital expenditures or payment in excess of $10,000 (individually or in the aggregate), or enter into any Contract which would have been a Company Agreement if in effect on the date hereof, therefor;
(Bxi) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) into, modify, amend, terminate or grant any consent or waiver under any Company Agreement Transferred Contract, or any other Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when 15,000, except for the same would have been collected renewal of any such Contract upon its expiration in the ordinary course of the Business consistent accordance with past practiceits terms;
(xa) delay make any change in any method of accounting or accelerate payment of any account payable accounting practice or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliatespolicy;
(xii) institute any material increase in any profit-sharingfail to preserve intact the Business’s and Sellers’ relationships with their employees, bonusagents, incentivecustomers, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or suppliers and other employee benefit plan Persons having contacts with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement Seller or the transactions contemplated herebyBusiness;
(xiii) make terminate or fail to renew any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practicesPermit or have any Permit revoked or suspended;
(Axiv) except as required by applicable Requirements of Lawabandon, prepare or file any Tax Return inconsistent with past practice orsell, on any such Tax Returnassign, take any positiontransfer, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income covenant not to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxessue, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxesa coexistence Contract, or request grant any ruling exclusive license or similar guidance with respect to, or otherwise create an Encumbrance with respect to Taxes;any Company IP; or
(xv) make enter into any change in the accounting policies applied in the preparation Contract to do any of the financial statements contained things described in Schedule 5.4, unless such change is required by GAAP;
subsections (xvii) originate, acquire, hold, sell, transfer, securitize through (xv) above or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate authorize any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22of, or suitable replacements thereforcommit or agree to take any of, in full force and effect through the Closing Datesuch actions.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Interactive Strength, Inc.), Asset Purchase Agreement (Interactive Strength, Inc.), Asset Purchase Agreement (Interactive Strength, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Seller shall, and shall cause the written approval of Buyerother Seller Parties to, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially in all material respects as presently operated. Consistent with the foregoing, Seller shall, and shall cause the Company other Seller Parties to, use commercially reasonable efforts consistent with good business practice to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company Business intact and to preserve the goodwill of the employeessuppliers, brokerscontractors, lenders licensors, Business Employees, customers, distributors and others having business relations with the CompanyBusiness. In connection therewith, the Seller shall not, and shall not permit cause the Company toother Seller Parties to not, with respect to any employee of the Company, Business Employee (i) transfer such employee Business Employee to Seller or an Affiliate another business unit of Seller, (ii) offer such employee Business Employee employment by another business unit of Seller or an its Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee Business Employee to terminate his or her relationship with the Company Seller Parties or not to continue commence employment with the Company Buyer after the Closing.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as described in Schedule 7.4 or as expressly contemplated by this Agreement or except with the express written approval of Buyer (Buyer, which Buyer agrees approval shall not be unreasonably withheld or delayed)withheld, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller shall cause the Company not toother Seller Parties to not:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside Seller Parties with respect to the ordinary course of businessBusiness;
(ivii) make any capital expenditure (including capitalized software) with respect to the Business or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companytherefor;
(v) (Aiii) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.16 if in effect on the date hereof, hereof or enter into any contract which cannot be assigned to Buyer or a permitted assignee of Buyer under Section 13.5;
(Biv) enter into any Contract which would require contract for the consent purchase of a third party real property to be used in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement Business or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereofSchedule 5.10(B);
(viv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company by Seller to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viivi) cancel any debts owed to or claims held by the Company Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, that would give rise to any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in lien on the ordinary course of businessPurchased Assets;
(ixviii) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xix) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xix) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of any assets (other than cash and cash equivalents) that would otherwise be Purchased Assets to Seller or any of its Affiliates;
(xi) make any material change in the compensation or benefits of the Business Employees;
(xii) institute terminate any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or Business Employees for a reason other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebythan cause;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positionsperiods, elections in each case to the extent doing so would affect the Taxes payable by the Buyer or methods that would have the effect of deferring income to periods ending Acquired Subsidiaries after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;; or
(xvxiv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviixv) make agree or commit to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.), Asset Purchase Agreement (NantHealth, Inc.)
Operations Prior to the Closing Date. (a) Except Until the earlier of the Closing and the termination of this Agreement, except (i) as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller8.7, (ii) offer such employee employment as required or permitted by Seller or an Affiliate of Seller after any Transaction Agreement (including in connection with the Closing Date or Separation), (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees approval shall not be unreasonably withheld withheld, delayed or delayedconditioned) or (iv) as may be required to comply with any applicable Law, Seller shall, and shall cause its Subsidiaries (subject, in the case of all Subsidiaries which are not wholly owned, to applicable fiduciary duties) (solely in respect of the Business) to use reasonable best efforts to, (A) conduct the Business in all material respects in the ordinary course of business, (B) preserve the goodwill of the material suppliers, contractors, licensors, customers, subscribers and others having material business relations with the Business, (C) maintain and preserve the business organizations, assets and technology of the Business, including the Transferred Assets, (D) exercise its negative consent rights under Section 5.3 (Affirmative Voting Obligations) of each of the partnership agreements with the Designated Entities in a manner consistent with this Section 8.7(a) or Section 8.7(b) and (E) cause the Business to make or commit to make Capital Expenditures in an aggregate amount during the period commencing on and including January 1, 2024 and ending on and including the day immediately prior to the Closing Date (the “Capex Measurement Period”) that are not less than fourteen percent (14%) of the service revenues of the Business for the Capex Measurement Period (the “Minimum Capex Spend”).
(b) Notwithstanding Section 8.7(a), until the earlier of the Closing and the termination of this Agreement, except (1) as required or permitted by this Agreement or as set forth in Schedule 8.7, (2) as required or permitted by any Transaction Agreement (including in connection with the Separation), (3) with the written approval of Buyer (which approval shall not be unreasonably withheld, delayed or conditioned) or (4) as may be required to comply with any applicable Law, Seller (solely in respect of the Business) shall not, with and shall cause its Subsidiaries (subject, in the case of Subsidiaries which are not wholly owned, to applicable fiduciary duties) (solely in respect to the Equity Interests, the Company or of the Business, and Seller cause the Company ) not to:
(i) amend its articles declare, accrue, set aside or pay any non-cash dividend or make any other non-cash distribution on or in respect of incorporation or by-laws (or similar organizational documents)any of the Acquired Companies’ capital stock to transfer any Transferred Asset to a Subsidiary that is not an Acquired Company;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right amend the organizational documents of any kind, fixed Acquired Company or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes Asset Transferor in the equity capital structure of the Companya manner adverse to Buyer;
(iii) make issue or authorize the issuance of any change equity securities in any of the Acquired Companies or any Asset Transferor (or securities exchangeable, convertible or exercisable for equity securities in any of the Acquired Companies or any Asset Transferor) (other than to Seller or another wholly-owned Subsidiary of Seller);
(iv) sell, lease, sublease, license, pledge, abandon, assign or otherwise dispose of any properties (including Owned Real Property and Leased Real Property) or non-cash assets of the Business or (including the operations of Transferred Assets) that are individually material to the Company outside Business, other than (1) in the ordinary course of business, (2) pursuant to any Contract that is set forth on the Parent/Seller Disclosure Letter, (3) Telecom Licenses and any other wireless spectrum, which shall be governed by Section 8.7(b)(xxi) below and Intellectual Property, which shall be governed by Section 8.7(b)(v) below or (4) sales or dispositions in any transaction between Seller and any wholly-owned Subsidiaries of Seller or between or among any wholly-owned Subsidiaries of Seller;
(iv1) make any capital expenditure or terminate, fail to renew, abandon, cancel, allow to enter into the public domain, let lapse any contract material Business Intellectual Property or commitment therefor (2) encumber, license (including through covenants not to sue), sell, transfer or otherwise dispose of (other than a disposition of the type described in the foregoing clause (1)) any Business Intellectual Property, other than (A) non-exclusive licenses granted to end users of products or services of the Business in the ordinary course of business and (B) non-exclusive licenses granted in the ordinary course of business to product or service providers (including vendors of products and services, distributors, resellers and agents) in connection with the provision of products and services to Seller or any of its Subsidiaries for the Business;
(vi) subject or agree to subject any Business Software distributed or conveyed to third parties to the terms of any Open Source Software license in any manner that would trigger Viral Effects with respect to such Business Software;
(vii) fail to continue to use reasonable efforts to maintain the confidentiality of any material Trade Secrets included in the Business Intellectual Property;
(viii) modify any Privacy Policy in a manner that would restrict in any material respect the ability of Seller or its Subsidiaries to Process Personal Data currently Processed by Parent or its Subsidiaries in connection with the Business (beyond the restrictions currently contained in such Privacy Policy), unless required otherwise by Privacy Law;
(ix) with respect to Seller, any Acquired Company or any Asset Transferor, adopt any plan of merger, consolidation, reorganization, liquidation or dissolution (other than in any transaction between Seller and any wholly-owned Subsidiary of Seller or between or among any wholly-owned Subsidiaries of Seller) or file a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition under any similar Law;
(x) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, joint venture, association or other business organization or division thereof for consideration in a single transaction excess of $50,000; provided that7,500,000 or $15,000,000 in the aggregate, other than any transaction between Seller and any wholly-owned Subsidiaries of Seller or between or among any wholly-owned Subsidiaries of Seller;
(xi) with respect to the Acquired Companies only, incur any Indebtedness, other than (A) with Seller or its wholly-owned Subsidiaries, (B) Indebtedness that will result in a reduction of the Purchase Price or that will be repaid at Closing (or prior thereto), (C) in the ordinary course of business or (D) pursuant to credit or securitization facilities of an Acquired Company in effect as of the date hereof (and any extensions or renewals of such facilities);
(xii) other than as required by any Seller Benefit Plan as in effect on the date hereof or applicable Law: (1) enter into, materially amend, or terminate any material Seller Benefit Plan or any other plan, program, policy, agreement or arrangement that would be a material Seller Benefit Plan if in effect as of the date hereof, with or for the benefit of any Business Employee, other than (A) actions, including entering into retention bonus agreements, that do not increase costs to, or Liabilities of, Buyer or any of the Acquired Companies after the Closing (including by reason of Buyer’s obligations pursuant to Section 9.7), (B) with respect to any Seller Benefit Plans other than Company Plans, actions taken in the ordinary course of business that are broadly applicable to similarly situated employees of Seller and its Affiliates and that do not increase (other than de minimis increases) costs to, or Liabilities of, Buyer or any of the Acquired Companies after the Closing (including by reason of Buyer’s obligations pursuant to Section 9.7), (C) in connection with the hiring or promotion of Business Employees in the ordinary course of business consistent with past practice, entering into new offer letters or employment agreements that are materially in the standard form and substance used by Seller and its Affiliates in the ordinary course of business consistent with past practice, or (D) to the extent necessary to effect the spin-off to, or assumption by, the Acquired Companies of any Seller Benefit Plans, or the portions thereof, that are Company may originate loans secured Plans, as contemplated by 1-to-4 family residential real estate this Agreement, (2) hire or offer to hire any individual to become a Business Employee, or change the duties or transfer the employment of any Person such that they qualify as a Business Employee, in an aggregate principal amount not each case if the number of Business Employees, following such hire, change in duties, or transfer, would exceed 4,900, (3) terminate the employment of any Offer List Employee (except for cause, performance or due to exceed $2,000,000 per monthpermanent disability as determined by Seller in good faith and consistent with past practice), (4) implement a reduction in force or termination of a material number of Business Employees without consulting with Buyer in good faith prior thereto, (5) retain any independent contractor of any Acquired Company, other than any independent contractor whose engagement is terminable by any Acquired Company without notice or additional liability to any Acquired Company, (6) grant or institute any increase in the cash or equity compensation of Business Employees or (7) outside of the ordinary course of business, grant or institute any material increase in the material employee benefits under Company Plans or material perquisites of Business Employees; provided further that Seller no increases in such employee benefits or perquisites (whether or not material) shall not originate increase costs to, or Liabilities of, Buyer or any loans secured by real estate on behalf of the Company or transfer any loans secured Acquired Companies after the Closing (including by real estate reason of Buyer’s obligations pursuant to the CompanySection 9.7);
(v) (Axiii) enter into any collective bargaining agreement or similar agreement with respect to any Acquired Company or in respect of any Business Employees;
(xiv) except in the ordinary course of business, grant or suffer to exist any Encumbrance, other than Permitted Encumbrances, on any of the assets of the Business (including the Transferred Assets) that are individually material to the Business;
(xv) materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except in accordance with GAAP or SEC rule or policy or required by other applicable Law;
(xvi) (1) except (x) as required by GAAP or SEC rule or policy or other applicable Law or (y) in the ordinary course of business, change in any material respect the policies or practices regarding accounting, cash management or working capital, including its existing credit, collection and payment policies, procedures and practices with respect to accounts receivable and accounts payable, including acceleration, failure or delay, prepayment of expenses, inventory control, accrual of expenses, deferral and/or recognition of revenue, and acceptance of customer deposits or (2) take any action of the type described in clause (1) of this Section 8.7(b)(xvi) that would artificially increase working capital of the Business relative to working capital of the Business as it would exist in the ordinary course of business had such action not been taken;
(A) modify, amend, terminate (other than expiration in accordance with its terms) or waive any material rights under any Material Contract which would have been in any material respect in a Company Agreement if manner that is adverse to the Business, taken as a whole, other than in effect on the date hereofordinary course of business, (B) enter into any Contract which would require the consent of with a third party in connection with the consummation of the transactions contemplated by this Agreement or term greater than one (C1) modifyyear, amendthat may not be terminated without cause, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement that, if it were in effect existing on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to would be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) a Material Contract other than in the ordinary course of business, or (C) except as permitted by any other clause of this Section 8.7(b), enter into any Contract that (1) is material to the Business consistent Business, taken as a whole, (2) cannot be terminated on less than ninety (90) days prior notice and (3) contains a change of control or similar provision that would require a material payment to the other party or parties thereto in connection with past practicethe transactions contemplated by the Transaction Agreements (unless Seller has agreed to make such payment);
(viiixviii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lesseemodify, amend, terminate (other than expiration in accordance with its terms) or waive any capitalized lease obligations (as defined material rights under any Contract of the type described in Statement of Financial Accounting Standards No. 13Section 5.13(s) or Section 5.13(t), in each case, other than in the ordinary course of business;
(ixxix) accelerate enter into any settlement or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan release with respect to employees of the Company, except for payments any material Action against any Acquired Company or otherwise related to stay bonusthe Business, transaction completion bonus, severance payments unless such settlement or other similar payments made release contemplates only the payment of money without ongoing material limits on the conduct or prior to the Closing Date as a result operation of this Agreement any Acquired Company or the transactions contemplated hereby;
(xiii) make any material increase in Business following the compensation of the employees of the CompanyClosing, and other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
settlements (A) except as required by applicable Requirements solely for the payment of Law, prepare Liabilities to the extent fully reflected or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used reserved against in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), Financial Statements or (B) settle solely of amounts that do not exceed $5,000,000 for a single Action or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes$10,000,000 in the aggregate for all such Actions;
(xvxx) make terminate, let lapse or materially amend or modify any change material insurance policy maintained in connection with the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, Business (other than an insurance policy that relates to a Seller Benefit Plan) unless such change policy (1) is required replaced by GAAP;
a reasonably comparable policy or (xvi2) originateis unable to be renewed or extended despite using reasonable best efforts, acquire, hold, sell, transfer, securitize other than amendments or hedge loans secured by real estate; provided that, modifications in the ordinary course of business consistent with past practiceregarding policy limits and deductibles;
(1) terminate, fail to renew, abandon, cancel, allow to enter into the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount public domain, let lapse, fail to continue to prosecute or defend, encumber, license (including through covenants not to exceed $2,000,000 per month; provided further that Seller shall not originate sue), any loans secured by real estate on behalf of the Company Telecom Licenses or (2) sell or transfer any loans secured by real estate Telecom Licenses, in each case other than (A) with respect to surrender of ETC Designations, (B) for the avoidance of doubt, with respect to the CompanyExcluded King Street/Advantage Spectrum Licenses or (C) for the avoidance of doubt, with respect to the Excluded Spectrum Assets;
(xxii) with respect to any Taxes of the Business or Acquired Companies, but excluding any action with regard to a Seller Consolidated Return that is not principally related to the Business or Acquired Companies: (1) make, change, or rescind any material election relating to Taxes, (2) amend any income or other material Tax Return, (3) surrender any material right or claim to a refund of Taxes (other than any refund of Taxes to which Seller is entitled under Section 9.6(g)), (4) consent to any extension or waiver of the statute of limitations period applicable to any income or other material Taxes, (5) enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of U.S. state, local, or non-U.S. Law) with respect to Taxes, or (6) settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit, or controversy relating to Taxes; or
(xviixxiii) make authorize, resolve, commit, agree (by Contract or otherwise) or otherwise become obligated to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company Notwithstanding anything to the contrary in this Agreement, the Seller Group shall keep all insurance policies set forth on Schedule 5.22be permitted to distribute Cash held by the Business to Persons outside of the Business.
(d) Nothing contained in this Section 8.7 shall give Buyer or any of its Affiliates, directly or suitable replacements thereforindirectly, the right to control or direct the operations of the Business prior to the Closing. Notwithstanding anything to the contrary contained in this Section 8.7, nothing in this Section 8.7 shall be deemed to limit Seller’s ability to cause its Affiliates to make any of the transfers or take such other actions contemplated by the Separation or that are reasonably necessary or appropriate to effect the Separation, in full force all cases, subject to and effect through in accordance with Section 8.10. In furtherance of the foregoing, ▇▇▇▇▇ acknowledges that prior to the Closing, Seller intends to remove from all of the Real Property any Excluded Books and Records and any assets used in connection with the operation of Retained Business, in all cases, subject to and in accordance with Section 8.10.
(e) Solely for purposes of determining and calculating the Estimated Closing Performance Adjustment Amount pursuant to Section 4.2 and the Closing Date.Per
Appears in 2 contracts
Sources: Securities Purchase Agreement (Telephone & Data Systems Inc /De/), Securities Purchase Agreement (United States Cellular Corp)
Operations Prior to the Closing Date. Between the date hereof and the Closing Date, but except as expressly contemplated herein, the Company shall, and shall cause the Company Subsidiary (a) Except as set forth unless Buyer shall otherwise consent in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, writing (which Buyer agrees consent shall not be unreasonably withheld withheld, delayed or delayedconditioned)), Seller shall to use its commercially reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, : (i) transfer such employee conduct its operations according to Seller or an Affiliate its ordinary and usual course of Sellerbusiness consistent with past practice, including, without limitation, to maintain in full force and effect and to pay all premiums due under all life insurance policies under which the Company is a beneficiary and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or seek to preserve intact its current business organization, (iii) otherwise attempt keep available the services of its current officers and employees and (iv) preserve its relationships with those customers, suppliers and others having material business dealings with it to persuade the end that goodwill and ongoing businesses shall not be impaired in any such employee to terminate his or her relationship with material respect on the Company or not to continue employment with Closing Date. Without limiting the Company after generality of the Closing.
(b) In addition, and without limiting Section 7.4(a)foregoing, except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interestsdisclosed on Schedule 6.2, the Company or the Business, and Seller cause the Company not toSubsidiary shall refrain from:
(ia) amend its amending the certificates or articles of incorporation or by-laws (or similar organizational other comparable corporate charter documents)) or taking any action with respect to any such amendment or any recapitalization, reorganization, liquidation or dissolution of any such corporation;
(iib) issueauthorizing, grantissuing, sell selling or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition otherwise disposing of any shares of its capital stock (or other securities comparable equity interest) of the Company or make the Company Subsidiary, or modifying or amending any right of any holder of outstanding shares of capital stock (or other changes in the comparable equity capital structure interest) of the Company;
(iiic) make except for the December Dividend, declaring, setting aside, paying or receiving any change dividend or other distribution in respect of the Business or the operations capital stock of the Company outside or directly or indirectly redeeming, purchasing, otherwise acquiring or receiving payment in respect of a redemption or other acquisition of, any capital stock of the ordinary course of businessCompany;
(ivd) make acquiring or disposing of, or incurring any capital expenditure Encumbrance on, any assets or enter into any contract properties of the Company or commitment therefor in excess of $50,000; provided thatthe Company Subsidiary, other than in the ordinary course of business consistent with past practice;
(e) (i) entering into, amending, modifying, terminating (partially or completely), granting any waiver under or giving any consent with respect to (A) any Contract that would, if in existence on the date of this Agreement, be a Business Agreement (B) any material Permit held or used by the Company may originate loans secured or the Company Subsidiary or (ii) granting any irrevocable powers of attorney;
(f) (i) entering into, amending, or modifying any Benefit Plan or any agreement with any current or former director, officer or employee, except as required by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate Law or (ii) increasing the salary, wages or other compensation of (A) any loans secured by real estate on behalf director, officer or employee of the Company or transfer the Company Subsidiary having a base salary in excess of $75,000 per year or any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation business consultant of the transactions contemplated by this Agreement Company or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Subsidiary or (B) the assets or properties any other employee of the Company, other than, Company or the Company Subsidiary in the case of this clause an amount greater than five percent (B), Permitted Encumbrances5%) per annum;
(viig) cancel paying any debts owed to benefit or claims held by the Company grant or amending any award (including the settlement in respect of any claims stock options or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13equity-related award), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice or as expressly required under any Benefit Plan existing on the date hereof and disclosed on Schedule 4.15(a);
(h) violating, breaching or defaulting under in any material respect, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation or breach of, or default under, any term or provision of any Permit held or used by the Company or the Company Subsidiary or any Contract to which the Company or the Company Subsidiary is a party or by which any of their respective assets or properties is bound;
(i) incurring indebtedness, other than Indebtedness incurred in the ordinary course consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate or (ii) voluntarily purchasing, canceling, prepaying or otherwise providing for a complete or partial discharge in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate advance of a scheduled payment date with respect to, or waiving any loans secured by real estate on behalf right of the Company or transfer the Company Subsidiary under, any loans secured by real estate indebtedness of or owing to the Company or the Company Subsidiary; provided, that the Company and the Company Subsidiary may deal with their respective accounts receivable in the ordinary course of business and in accordance with past practice;
(j) engaging with any Person in any merger or other business combination;
(k) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an aggregate amount exceeding $100,000;
(l) making any change in the lines of business in which the Company or the Company Subsidiary participate or are engaged;
(m) writing off or writing down any of the Company’s or the Company Subsidiary’s assets or properties outside the ordinary course of business consistent with past practice;
(n) making any change in any accounting or Tax practice, policy or election of the Company or the Company Subsidiary;
(o) making any payment to, distributing (or granting any beneficial interest in) any asset of the Company or the Company Subsidiary (other than distribution of the Vintage Firearms or the proceeds thereof as permitted hereunder) to, or incurring any liability or expense on behalf of any Affiliates, officers, directors, or shareholders of the Company or the Company Subsidiary other than those arising in the ordinary course of business from such Persons employment or duties as a director or as expressly provided for in a Business Agreement disclosed on Schedule 4.13(j); or
(xviip) make entering into any material change Contract to do or engage in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Operations Prior to the Closing Date. (a) Except Prior to the Closing, except as set forth in on Schedule 7.4 7.4, requested by any Governmental Body, required or as contemplated expressly permitted by this Agreement or except with the written approval of BuyerLaw, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall notuse its commercially reasonable efforts to cause the Companies to operate and carry on the Business in all material respect in the ordinary course and substantially as operated immediately prior to the date of this Agreement and to use their commercially reasonable efforts to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies.
(b) Notwithstanding Section 7.4(a), except as set forth on Schedule 7.4(b), requested by any Governmental Body, required by any Law, required or expressly permitted by this Agreement or with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed with respect to the Equity Interestsmatters in clauses (ii), (iv), (xiv), (xiv) and (xvii) below and, to the Company or extent related thereto, (xviii)), prior to the BusinessClosing, and Seller cause shall not permit either of the Company not Companies to:
(i) amend its articles acquire (by merger, consolidation, acquisition of incorporation stock or by-laws (assets or similar organizational documents)otherwise) any corporation, partnership or other business organization or division, other than as contemplated by the Reorganization;
(ii) issue, grant, sell or encumber any shares of its make capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure expenditures or enter into any contract Contract or commitment therefor in excess of $50,000; provided that, 1,000,000 in the ordinary course of business consistent with past practice, aggregate that are not contemplated in the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not 2019 budget for the Business provided to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate Buyer prior to the Companydate hereof (or with respect to expenditures in 2020, 120% in excess of such budget on a pro rata basis for the applicable months) or otherwise required for emergency maintenance or repairs;
(viii) (A) enter into make, or agree to make, any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent payment or distribution of a third party in connection with the consummation assets of the transactions contemplated by this Agreement or Business (Cother than cash) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businessbusiness or as contemplated by the Reorganization;
(ixiv) accelerate grant to any Business Employee any increase in cash compensation or delay collection of any notes or accounts receivable other material employee benefits, other than (A) annual raises in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent accordance with past practice, (B) pursuant to existing Contracts disclosed in the Schedules (including any Employee Benefit Plan), (C) under Employee Benefit Plans, increases broadly applicable to all similarly situated employees at Seller and its Affiliates, or (D) for which the Company, Buyer and Buyer’s Affiliates shall not have any Liability following the Closing;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiiv) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvivi) originatemake a material change in practices and procedures with respect to collection of accounts receivable, acquireprepayment of expenses or payment of trade accounts payable;
(vii) settle any material Proceeding, holdexcept to the extent such settlement does not obligate the Companies to (A) pay money following the Closing or (B) take or refrain from taking any action following the Closing that would reasonably be expected to harm the Business;
(viii) make or change any Tax election, change any Tax accounting period, change any Tax method of accounting, file any amended Tax Return, settle or otherwise compromise and proposed assessment of Taxes, or forego any right to a refund of Taxes, in each case if such action would materially adversely affect the Liability of the Buyer, any Company or their respective Affiliates for Taxes for any taxable period (or portion thereof) beginning after the Closing Date;
(ix) make any change in the charter or bylaws or comparable organization document of either of the Companies;
(x) authorize for issuance, issue, deliver, sell, transfertransfer or grant to any Person (other than to Seller) (A) any equity or similar interests of either of the Companies, securitize (B) any debt equity or hedge loans secured by other voting securities of either of the Companies, or (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any equity or similar interests, voting securities or convertible or exchangeable securities of either of the Companies;
(xi) adopt a plan of complete or partial liquidation or dissolution, restructuring, recapitalization or reorganization of any Company or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or reorganization;
(xii) recognize any labor union or enter into or amend any collective bargaining agreement;
(xiii) acquire any real estate; provided thatproperty;
(A) enter into any Shared Vendor Contract, or (B) enter into, terminate, cancel or modify in any material respect any Business Agreement (or any Contract that would be a Business Agreement if in effect as of the date of this Agreement), in each case other than extensions to renew the Business Agreement in the ordinary course of business consistent on terms that are not materially inconsistent with past practicethe practice of the Business in 2018 in respect of extensions and renewals; provided, however, that with respect to Business Agreements described in Section 5.13(b), 5.13(c) or 5.13(k) (or Contracts that would have been Business Agreements under such Sections if in effect as of the date hereof), the Company may originate loans secured by 1-to-4 family residential real estate Companies shall be permitted to enter into modify such Contracts in an aggregate principal amount not the ordinary course of business (even if such Business Agreements or Contracts also constitute or would constitute Business Agreements under other provisions of Section 5.13);
(xv) implement any material change with respect to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf business line of the Company or transfer any loans secured by real estate Business, which such change is materially inconsistent with the business plans Seller has provided in writing to Buyer with respect to the CompanyBusiness on or prior to the date hereof;
(xvi) enter into any Contract with Seller or its Affiliates (other than the Companies) that would survive the Closing or enter into any ▇▇▇▇▇▇ Contract that requires a third-party consent or approval to effect the Closing without breach of such ▇▇▇▇▇▇ Contract;
(xvii) incur any Indebtedness that will not constitute Indebtedness that will be repaid at Closing; or
(xviixviii) make agree to enter into any material change of the transactions set forth in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing clauses.
(c) The Company Notwithstanding anything contained herein to the contrary, Seller shall keep all insurance policies be entitled to transfer any Cash of the Companies to Seller, via dividend or otherwise, at any time and from time to time prior to midnight on the day immediately preceding Closing; provided, however, from midnight on the Closing Date through the Closing, Seller shall not use or transfer any Cash of the Companies or assets included in Closing Date Working Capital, to the extent such assets are sold, liquidated, disposed of or otherwise used to (i) make payment in respect of or discharge any Indebtedness or Transaction Expenses or (ii) pay any dividends, make any distribution or make any other payment to or for the benefit of the Seller or any Affiliate of the Seller (other than the Companies).
(d) Seller shall, and shall cause its Subsidiaries to, use reasonable best efforts to obtain as promptly as practicable and in any event prior to the Closing an attestation of compliance with respect to the matter set forth on Schedule 5.227.4(d). Seller shall promptly deliver to Buyer such attestation upon receipt.
(e) Prior to the Closing, or suitable replacements thereforthe Parties shall negotiate in good faith in an effort to agree upon the terms of, in full force and effect through use their respective commercially reasonable efforts to execute as of the Closing Date, the Online ▇▇▇▇ Payment Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aci Worldwide, Inc.), Stock Purchase Agreement (Western Union CO)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of BuyerSellers shall, which Buyer agrees and shall not be unreasonably withheld or delayedcause Dermagraft JV and DermEquip to, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business (excluding the Excluded Assets, Excluded Liabilities and Employees who are not Transferred Employees) only in a manner consistent with the Budget and, to the extent consistent with the Budget, in the ordinary course consistent with past practice. Sellers agree to fund Dermagraft JV as required under normal practice and substantially as presently operatedconsistent with the Budget. Consistent with the foregoingforegoing and with the Budget and to the extent permitted or required by the Bankruptcy Proceedings, Seller Sellers shall, and shall cause the Company to keep Dermagraft JV and maintain the material assets of the Company in good operating condition and repair and shall DermEquip to, use its their reasonable best efforts consistent with good business practice to continue operating the Business (excluding the Excluded Assets, Excluded Liabilities and Employees who are not Transferred Employees) as a going concern, and to maintain the business organization of the Company Business (excluding the Excluded Assets, Excluded Liabilities and Employees who are not Transferred Employees) intact and to preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness (excluding the Excluded Assets, Excluded Liabilities and Employees who are not Transferred Employees). In connection therewith, Seller shall notand except for Employees who are not Transferred Employees, and Sellers shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee or cause to Seller be transferred from the Business any Employee or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller for any period on or an Affiliate of Seller after the Closing Date to any such employee or agent regarding whom Buyer makes offers of employment (if any); provided, that Sellers may offer employment to each of the Employees listed in Section 7.4 of the Disclosure Schedule if such Employee declines employment with Buyer or its Affiliates or Buyer and its Affiliates do not offer to employ such Employee, (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company or (iv) except for Employees who are not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issueTransferred Employees, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations compensation of the Company outside the ordinary course employees of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller Sellers or any of its Affiliates), or mortgage or pledge, or impose or suffer their Affiliates rendering services to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyBusiness, other thanthan changes made, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) employees other than in the ordinary course of the Business consistent with past practice;
(viii) createofficers, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on practices and Sellers shall promptly notify Buyer regarding any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliateschanges.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Advanced Tissue Sciences Inc), Asset and Equity Purchase Agreement (Advanced Tissue Sciences Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, The Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company Transferred Antibody Collection Business to carry on the Business only in the ordinary course and operate substantially as presently operatedoperated prior to the date of this Agreement. Consistent with the foregoing, the Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingTransferred Antibody Collection Business.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), 6.4(a) except as expressly otherwise contemplated by this Agreement or except with as consented to in writing by the express written approval of Buyer (which Buyer agrees consent shall not be unreasonably withheld or delayed), the Seller shall not, not with respect to the Equity Interests, the Company or the Transferred Antibody Collection Business, and Seller cause the Company not to:
(i) amend make any material change in the Transferred Antibody Collection Business or its articles operations, except such changes as may be required to comply with any applicable requirements of incorporation or by-laws (or similar organizational documents)law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that100,000 in the aggregate, except in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyTransferred Antibody Collection Business;
(viii) except to the extent set forth in Schedule 6.4(b)(iii) attached hereto (A) for which the consent of the Buyer shall be required, such consent to not be unreasonably withheld), enter into any Contract which would have been a Company Agreement if in effect on contract for the date hereof, (B) purchase of real property or enter into any Contract which would require the consent new lease of real property or exercise any option to extend a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofLease;
(viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13)Assets, other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to the employees of the CompanyTransferred Antibody Collection Business, except for payments related to stay bonus, transaction completion bonus, severance payments other than in the ordinary course or other similar payments made on as required by any such plan or prior to the Closing Date as a result requirements of this Agreement or the transactions contemplated herebylaw;
(xiiivi) make any material increase general change in the compensation of the employees of the CompanyTransferred Antibody Collection Business, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviivii) make sell or otherwise transfer any material change in internal control over financial reporting, Plasma Inventory other than any change required by GAAP or any change made by Seller with respect pursuant to all (A) Contract (existing as of its Controlled Affiliates.
the date of this Agreement without amendment subsequent to the date of this Agreement), (cB) The Company shall keep all insurance policies set forth on Schedule 5.22the Bayer Supply Agreement, or suitable replacements therefor, (C) sales to the Korean Green Cross in full force and effect through the Closing Dateaccordance with past practices.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Nabi /De/), Agreement for Purchase and Sale of Assets (Nabi Biopharmaceuticals)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or 7.4, except as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller Aon shall not, with respect use its reasonable efforts to the Equity Interests, the Company or the Business, and Seller cause the Company and the Subsidiaries to operate and carry on their business in the ordinary course and substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, Aon shall cause the Company and the Subsidiaries to use their reasonable efforts consistent with good business practice to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Company and the Subsidiaries.
(b) Notwithstanding Section 7.4(a), except as set forth in Schedule 7.4, except as contemplated by this Agreement or except with the written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Aon shall not permit the Company and the Subsidiaries to:
(i) amend its articles make any material change in their business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issuemake any investments other than in accordance with the investment policies of the Company and the Subsidiaries as of the date of this Agreement, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Companymaterial amendments to such investment policies;
(iii) make any change realize gains or losses in the Business or the operations of the Company outside investment securities other than in the ordinary course of businessbusiness consistent with past practices of the Company and the Subsidiaries;
(iv) make any capital expenditure or enter into any contract or commitment therefor therefor, other than in the ordinary course of business, in excess of $50,000; provided that1,000,000;
(v) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or assets comprising a business or make any investment, either by purchase of stock or other securities or contribution to capital, that is material to the Company and the Subsidiaries taken as a whole;
(vi) enter into any contract for the purchase of real property;
(vii) cancel any debts owed to or claims held by them (including the settlement of any claims or litigation) other than in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate practice or in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyaccordance with Section 7.5;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viviii) sell, lease (as lessor), transfer or otherwise dispose of (including other than any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Companytheir assets, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business business consistent with past practicepractice and other than Permitted Encumbrances;
(viiiix) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), ) other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practiceindebtedness that is subject to Section 7.5;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9Sections 7.5 and 7.6 below, make, or agree to make, any distribution or other disposition of assets (other than including cash and or cash equivalents) to Seller Aon or any of its AffiliatesAffiliates or otherwise declare or pay any dividend on its capital stock;
(xi) enter into any new agreement or arrangement between the Company or a Subsidiary, on the one hand, and Aon or any of its Affiliates (other than the Company and the Subsidiaries), on the other hand;
(xii) institute enter into any material agreement with a third party providing for the acceleration, payment, performance, consent or other consequence as a result of a change in control of any of the Company and the Subsidiaries involving any payment by the Company or the Subsidiaries;
(xiii) (1) enter into any employment or severance agreement, other than for new employees in the ordinary course of business, (2) increase the benefits payable in the aggregate under severance or termination pay plans or policies in effect on the date hereof, other than as required by Law, (3) adopt any profit-new or amend any existing bonus, profit sharing, bonus, incentive, deferred compensation, insurancestock option, pension, retirement, medicaldeferred compensation, hospital, disability, welfare employment or other employee benefit plan with respect to employees or policy for the benefit of the Companyany director, except for payments related to stay bonus, transaction completion bonus, severance payments officer or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Companyemployee, other than changes made (A) for new employees in accordance with normal compensation practices the ordinary course of business, (B) as required by Requirements of Law, (C) amendments to bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plans or policies which are applicable to all or a portion of the Company and the Subsidiaries and which do not in the aggregate increase amounts otherwise payable under such plans or policies and (D) any change generally applicable to Aon employees or any change in the ordinary course consistent with past compensation practices;
, (A4) except as required by applicable Requirements increase the compensation or benefits of Lawany director or executive officer, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, other than in the ordinary course of business consistent and other than pursuant to Requirements of Law or Company Employment Agreement or (5) waive or amend the terms of any noncompetition or nonsolicitation agreement with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf employee;
(xiv) change any of the Company material accounting principles, practices, methods or transfer policies (including but not limited to any loans secured reserving methods, practices or policies or the classification or computation of current or deferred tax assets or liabilities on the Balance Sheet), except as may be required as a result of a change in Requirements of Law, GAAP or SAP (with Aon providing the Buyer with prompt, prior written notice of any such change);
(xv) make, change or revoke any Tax election or method of accounting for Tax purposes or enter into or amend any Tax sharing agreement or Tax indemnity if such action would increase the amount of Taxes for which Buyer would be liable pursuant to this Agreement;
(xvi) make any change in their charters or by-laws or issue any capital stock (or securities exchangeable, convertible or exercisable for or rights to acquire capital stock);
(xvii) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, amalgamation, consolidation, restructuring, recapitalization or other reorganization, other than any transactions in connection with facilitating the restructuring contemplated by real estate to the CompanySection 8.8; or
(xviii) agree in writing or otherwise to take any of the actions described above in clauses (i) through (xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aon Corp), Stock Purchase Agreement (Ace LTD)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by Subject to the terms and conditions of this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedAgreement, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company Companies to carry on conduct the Business only in the ordinary course and substantially in all material respects as presently operatedoperated prior to the date of this Agreement. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets each of the Company in good operating condition and repair and shall Companies to use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingCompanies.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth on Schedule 7.4, as contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company Companies not to:
(i) amend make any material change in the Business or its articles operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor (or a series of related contracts or commitments) to make any capital expenditure in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company250,000;
(v) (Aiii) enter into any Contract which would have been contract for the purchase of real property or exercise any option to extend a Company Agreement if lease listed in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSchedule 5.9;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiv) create, incur incur, guarantee or assume, or agree to create, incur incur, guarantee or assume, any Indebtedness indebtedness for borrowed money (other than money borrowed or enter into, as lessee, advances from any capitalized lease obligations (as defined of its Affiliates in Statement the ordinary course of Financial Accounting Standards No. 13the Business), other than except in the ordinary course of business;
(ixv) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of cash or distribution or other disposition of assets to any of its Affiliates (other than payments made in respect of cash and cash equivalents) to Seller or any realized upon collection of its Affiliatesreceivables generated in the ordinary course of the Business);
(xiivi) institute any material increase in any profit-profit- sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to its employees, other than as required by any such plan or Requirements of Law;
(vii) make any change in the compensation of its employees, other than, in the case of employees who are not executive officers of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Aviii) issue, sell or redeem or agree to issue, sell or redeem (i) any shares of capital stock or (ii) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of capital stock of either Company;
(ix) except in the ordinary course of business, as required by applicable Requirements law or contractual obligations existing on the date hereof or as provided for in or contemplated by this Agreement, (A) sell, transfer or otherwise dispose of Lawany of its assets other than inventory in the ordinary course of business, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle create any new Encumbrance on its properties or otherwise compromise any claim related to Taxesassets (other than Permitted Encumbrances), (C) enter into any closing agreement joint venture or similar agreement related to Taxes, otherwise settle partnership or (D) purchase any dispute relating to Taxes, assets or request securities of any ruling or similar guidance with respect to TaxesPerson;
(xvx) make any change in the accounting policies applied in the preparation of the audited financial statements contained in Schedule 5.4, unless such change is 5.5 other than as required by GAAP;
(xvixi) originatemake any change in the charter or by-laws of either Company; or
(xii) enter into, acquiremodify or amend any Business Agreement. Notwithstanding the provisions of this Section, holdnothing in this Agreement shall be construed or interpreted to prevent the Companies from (i) paying or making regular or special dividends or other distributions, sell(ii) making, transferaccepting, securitize paying, repaying or hedge settling inter- or intracompany receivables, payables, loans secured by real estate; provided thator advances to, from or with one another or with Seller or any Affiliate, or (iii) engaging in any transaction incident to the cash management procedures of Seller and its Affiliates and borrowings for working capital purposes and purposes of providing additional funds to the Companies in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesbusiness.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Specialty Foods Acquisition Corp), Stock Purchase Agreement (Specialty Foods Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Between the written approval of BuyerSale Hearing and the Closing, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to Sellers will cause the Company Business to carry on the Business only be operated in the ordinary course Ordinary Course of Business and substantially as presently operated. Consistent with pursuant to the foregoing, Seller shall cause the Company to keep and maintain the material assets terms of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall notDIP Facility Budget, and shall not take any action inconsistent with the transactions contemplated hereby and will not permit any material transaction outside the Company to, with Ordinary Course of Business in respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and Business without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld) or delayed)unless so ordered by the Bankruptcy Court after notice to Buyer. Sellers shall take no action to the detriment of Buyer or the operation of the Business by Buyer, Seller following the Sale Hearing. Sellers acknowledge and agree that prior to the Closing Date Sellers are operating the Business on behalf of, and in trust for, the Buyer, and shall take no action in contravention thereof. Without limiting the generality of the foregoing, Sellers shall not, without the express written approval of Buyer, which shall not be unreasonably withheld, or authorization by order of the Bankruptcy Court:
(a) except as set forth on Schedule 5.6(c), fail to maintain or renew all copyright, trademark and patent applications or fail to maintain any registered copyrights, trademarks or patents;
(b) fail to maintain in good working order any Equipment, unless it has a de minimis impact upon the Business;
(c) fail to maintain all insurance covering loss or destruction of the Purchased Assets or conduct of the Business currently in effect;
(d) fail to maintain all material relationships with respect lessors, licensors, suppliers, customers, and employees of the Business;
(e) fail to preserve the Equity Interests, the Company or strict confidence of all trade secrets related to the Business, subject to the Sellers’ ability to disclose information to other prospective bidders and Seller cause their advisers in accordance with the Company not to:
(i) amend its articles terms of incorporation or bythe standard non-laws (or similar organizational documents)disclosure agreement furnished to prospective bidders;
(iif) issueenter into any contract, grantagreement, sell undertaking or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for commitment affecting the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure Business outside of the Company;
(iii) make any change in the Ordinary Course of Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract agreement, undertaking or commitment therefor in excess that will have the effect of $50,000; provided that, in the ordinary course of business consistent competing with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf Buyer’s operation of the Company or transfer any loans secured by real estate to the CompanyBusiness;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vig) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company a Seller to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets or (B) Shares, other than consenting to the assets or properties assignment of the Company, other than, in DIP Facility from the case of this clause (B), Permitted EncumbrancesDIP Lenders to Buyer pursuant to the terms hereof;
(viih) cancel any debts owed unless to Sellers’ benefit or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course Ordinary Course of Business, amend, modify, extend, renew or terminate any Contract or Real Property Lease that is to be assumed by Buyer, or terminate, waive or amend any right under any of the Business consistent with past practiceContracts or Real Property Leases that are to be assumed by Buyer;
(viiii) create, incur enter into any business or assume, arrangement or agree otherwise take any action that would reasonably be expected to create, incur or assume, have a material adverse impact on the ability of the Buyer to obtain any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined material consents of Governmental Bodies necessary in Statement of Financial Accounting Standards No. 13), other than in connection with the ordinary course of businessBusiness;
(ixj) accelerate or delay collection intentionally fail to notify Buyer in writing of the commencement of any notes or accounts receivable in advance of or beyond their regular due dates material litigation against any Seller or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practiceBusiness;
(xk) delay hire any new individuals or accelerate payment of any account payable increase salaries or other liability of the Company beyond wages, declare bonuses, increase compensation or in advance of its due date benefits or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharingnew employment arrangement, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan or program with respect to employees of the Companyany Employee, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements law, as required by the terms of Law, prepare previously existing Employee Plans or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect Ordinary Course of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to TaxesBusiness;
(xvl) make any change intentionally fail to notify Buyer in the accounting policies applied in the preparation writing of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize proposed entry into any Contract or hedge loans secured by real estate; provided that, in Real Estate Lease and the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not intention to exceed $2,000,000 per month; provided further that Seller shall not originate reject any loans secured by real estate on behalf of the Company Contract or transfer any loans secured by real estate to the CompanyReal Estate Lease; or
(xviim) make enter into any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect commitment for capital expenditures except pursuant to all of its Controlled Affiliates.the DIP Facility Budget; or
(cn) The Company fail to comply with all requirements of Law applicable to the Purchased Assets, and promptly after receipt thereof, give Sellers copies of any notice received from any Governmental Body or other Person alleging any violation of or liability under any such Requirements of Law. To the extent that there is any ambiguity as to whether a contract, agreement, undertaking or commitment affects the Business or the Purchased Assets or is outside of the Ordinary Course of Business, Sellers shall keep all insurance policies set forth on Schedule 5.22consult with Buyer in good faith prior to entering into such contract, agreement, undertaking or suitable replacements thereforcommitment. For purposes of clarity, nothing in full force and effect through this Section 8.3 shall be construed to in any way limit Sellers’ ability to auction the Closing DatePurchased Assets to the highest bidder at the Auction.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Capital Growth Systems Inc /Fl/), Asset Purchase Agreement (Capital Growth Systems Inc /Fl/)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its commercially reasonable efforts to operate to, and shall use its reasonable efforts to cause the Company to Companies and the Subsidiaries to, operate and carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts to, and shall cause the Company Companies and the Subsidiaries to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to, preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, Companies and shall not permit the Company to, Subsidiaries (with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness).
(b) In addition, and without limiting Notwithstanding Section 7.4(a6.4(a), except as expressly set forth on Schedule 6.4 of the Seller Disclosure Schedule, except as contemplated by this Agreement (including Section 6.10) or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, not (with respect to the Equity InterestsBusiness) permit the Companies and the Subsidiaries, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, than in the ordinary course of business consistent with past practice, to:
(i) make any material change in the Company Business or their operations, except such changes as may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not be required to exceed $2,000,000 per month; provided further that Seller shall not originate comply with any loans secured by real estate on behalf applicable Requirements of the Company or transfer any loans secured by real estate to the CompanyLaw;
(vii) purchase or otherwise acquire any assets or make any Capital Expenditures, in each case that are material, individually or in the aggregate, to the Business (other than (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent purchases of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than inventory in the ordinary course of the Business business consistent with past practice, (B) Pre-Approved Capital Expenditures and Approved Capital Expenditures, (C) Capital Expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by Seller, the Companies or the Subsidiaries (so long as any such Capital Expenditures are disclosed to Buyer in writing prior to any expenditure or commitment therefor), and (D) Capital Expenditures required by any Governmental Body;
(viiiiii) exercise any option to extend a lease listed on Schedule 4.9(a)(i) or materially adversely amend or modify any Lease Agreement (other than the lease modifications contemplated by Section 2.6(b)) or Real Estate Agreement;
(iv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of its Affiliates in the ordinary course of business) or grant any Encumbrance with respect to the assets of any of the Companies or any of the Subsidiaries, in each case other than Permitted Encumbrances, Permitted Real Property Exceptions and Encumbrances imposed by the Credit Agreement;
(ixv) accelerate or delay collection of transfer any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of material assets (other than cash in excess of Register Cash prior to the Effective Time and cash equivalentsother than amounts that have been withheld from Business Employees and retained by Seller and its Affiliates) to Seller or any of its AffiliatesAffiliates (other than the Companies or any Subsidiary);
(xiivi) institute any material increase in the benefits available under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees any Business Employees, other than as expressly required by the terms of any such plan as in effect on the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result date of this Agreement or Requirements of Law;
(vii) (A) grant to any Key Employee any increase in compensation or other material benefits (excluding any retention agreements that do not involve payments by Buyer, the transactions contemplated herebyCompanies or the Subsidiaries to any such Key Employee after the Closing) or grant to any Business Employee any material increase in compensation or other benefits (excluding any retention agreements that do not involve payments by Buyer, the Companies or the Subsidiaries to any such Key Employee after the Closing) except as may be required under existing agreements or (B) designate any Business Employee as a participant in the Severance Pay Plan pursuant to Section 2.A(ii) of the Severance Pay Plan;
(viii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto;
(ix) enter into or amend any collective bargaining agreement;
(x) acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, any business or any corporation, partnership, limited liability company association or other business organization or division thereof;
(xi) sell or otherwise dispose of any assets that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xii) materially adversely modify or amend any Business Agreement;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting methods or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvixiv) originateamend the charter, acquire, hold, sell, transfer, securitize bylaws or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf similar organizational documents of the Company Companies or transfer any loans secured by real estate to of the CompanySubsidiaries; or
(xviixv) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Purchase Agreement (Saks Inc), Purchase Agreement (Bon Ton Stores Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, 7.4.1. Seller shall use its reasonable efforts cause the Acquired Companies to operate and shall use its reasonable efforts to cause the Company to carry on the Business their business only in the ordinary course Ordinary Course of Business and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company Assets to keep be maintained in the same working order and maintain the material assets condition, in a manner consistent with past practice, as such Assets are in as of the Company in good operating condition date of this Agreement (reasonable wear and repair tear excepted) and shall use its reasonable best efforts consistent with good business practice Best Efforts to maintain the business organization of the Company Acquired Companies intact and to preserve the goodwill of present relationships with the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcquired Companies.
(b) In addition, and without limiting Section 7.4(a), except 7.4.2. Except as expressly contemplated by this Agreement or as set forth on SCHEDULE 7.4.2 or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, not with respect to the Equity Interests, the Company or the Business, Acquired Companies and Seller shall cause the each Acquired Company not to:
: (ia) amend its articles of incorporation or by-laws Organizational Documents; (or similar organizational documents);
(iib) issue, grant, sell or encumber any shares of its capital stock stock, any other voting, equity or ownership interest in the Acquired Company or any other securities, ; or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock stock, any other voting, equity or ownership interest in the Acquired Company or any other securities or make any other changes in the equity capital structure of the any Acquired Company;
; (iiic) make any material change in the Business or the operations of the Company outside the ordinary course of business;
Acquired Companies; (ivd) make any capital expenditure expenditures in excess of $100,000 in the aggregate or enter into any contract or commitment therefor therefor, other than capital expenditures or commitments for capital expenditures currently budgeted and disclosed in excess of $50,000SCHEDULE 7.4.2; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (Ae) enter into any Contract which requires the Consent of any third party to consummate the Contemplated Transactions; or make any modification to any existing Applicable Contract or to any Governmental Authorization, other than changes made in good faith that would have been not be material to the Acquired Companies as a Company Agreement if in effect on whole, would not adversely affect the date hereofability of Seller, the Acquired Companies or any of their respective Affiliates to consummate the Contemplated Transactions and would not adversely affect the ability of Buyer to conduct the Business of the Acquired Companies as currently conducted from and after the Closing; (Bf) enter into any Contract which would require for the consent purchase, lease (as lessee) or other occupancy of a third party real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement SCHEDULE 5.11.2 or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereof;
SCHEDULE 5.11.2; (vig) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the any Acquired Company to Seller or any Affiliate of its AffiliatesSeller other than another Acquired Company), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance (other than a Permitted Encumbrance) on, any of (A) the Equity Interests or (B) the assets or properties of the any Acquired Company, other than, than inventory or other Personal Property not material to the Business sold or otherwise disposed of for fair value in the case Ordinary Course of this clause Business; (B), Permitted Encumbrances;
(viih) cancel any debts Indebtedness owed to or claims held by the any Acquired Company (including the settlement of any claims or litigation) other than in the ordinary course Ordinary Course of the Business consistent with past practice;
Business; (viiii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than except for borrowings incurred in the ordinary course Ordinary Course of business;
Business consistent with past practice, or Indebtedness incurred by loans or advances to officers and employees of the Acquired Companies for travel, business or relocation expenses in the Ordinary Course of Business; (ixj) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course Ordinary Course of the Business consistent with past practice;
Business; (xk) delay or accelerate payment of any account payable or other liability of the Company Liability beyond or in advance of its due date or the date involving more than $25,000 when such liability Liability would have been paid in the ordinary course Ordinary Course of Business; (l) incur any Liability other than current Liabilities incurred in the Business consistent with past practice;
Ordinary Course of Business; (xim) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of any dividend or distribution of cash or any other disposition of assets (other than cash and cash equivalents) to Seller or any Affiliate of its Affiliates;
Seller (xii) institute any material increase other than another Acquired Company or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare connection with the purchase of steel raw materials from WPC or other employee benefit plan with respect to employees PCC on normal terms and at prices not in excess of market prices in the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result Ordinary Course of this Agreement or the transactions contemplated hereby;
Business); (xiiin) make any material increase addition to, contribution to, or modification of the Applicable Plans, other than (i) contributions made in accordance with the Ordinary Course of Business (which would include the normal discretionary contribution for 2001 to the Company's 401(k) Retirement Savings Plan in an amount consistent with that made in prior years); (ii) the extension of coverage to other employees who become eligible after December 31, 2001; and (iii) any plan amendments required by applicable Legal Requirements; (o) make any change in the compensation of the employees of the CompanyAcquired Companies, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
; (Ap) except make any change in the accounting policies applied in the preparation of the Financial Statements contained in SCHEDULE 5.5 other than as required by applicable Requirements of Law, GAAP; (q) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, election or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable or accelerating deductions to periods ending on or before the Closing Datefor which Seller is liable), ; or (Br) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle take any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required action that would be prohibited by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (WHX Corp), Stock Purchase Agreement (Worthington Industries Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Sellers shall maintain the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to Purchased Assets and operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially consistent with past practice except as presently operatedotherwise expressly provided in this Agreement. Consistent with the foregoingforegoing and to the extent permitted or required by the Bankruptcy Proceedings, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and Sellers shall use its reasonable best efforts consistent with good business practice to continue operating the Business as a going concern, and to maintain the business organization of the Company Business intact and to preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, and except for employees who Buyer notifies Seller will not be hired by Buyer pursuant to Schedule 8.2(a), no Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from the Business any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller for any period on or an Affiliate of Seller after the Closing Date to any such employee or agent regarding whom Buyer makes offers of employment (if any), or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In additionExcept (x) as otherwise expressly provided in this Agreement, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except (y) with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld Buyer, no Seller, Transferred Subsidiary or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toany Subsidiary of any Transferred Subsidiary shall:
(i) amend its articles make any capital expenditure in excess of incorporation $100,000 in the aggregate with respect to the Business or by-laws (enter into any Contract or similar organizational documents)commitment therefor, except in each case in the ordinary course of Business pursuant to existing Contracts;
(ii) issue, grant, sell enter into any Contract for or encumber any shares relating to the Business that cannot be assigned to Buyer or a permitted assignee of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyBuyer under Section 11.6;
(iii) make enter into any change Contract for the purchase of real property to be used, or held for use in, or otherwise relating to the Business, other than real property that is an Excluded Asset or enter into any Contract that is for a term longer than six months that cannot be terminated by Buyer without penalty or that is in the Business or the operations nature of the Company outside the ordinary course of businessa "requirements" Contract;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatpurchase, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers transfer from the Company Business to Seller or any Affiliates of its AffiliatesSellers), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance onor Interest on (other than Permitted Encumbrances and Assumed Liabilities), any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, in than the case sale of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than Inventory for fair value in the ordinary course of the Business consistent with past practice;
(viiiv) create, incur cancel or assume, settle any material debts owed to or agree to create, incur material claims held by the Business (including the settlement of any claims or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), litigation) other than the compromise of customer accounts receivable in the ordinary course of businessBusiness consistent with past practice or agree to, settle or pay any material claim against any Seller or any Transferred Subsidiary;
(ixvi) enter into, or agree to enter into, any sale-leaseback transactions;
(vii) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected dates, except in the ordinary course of the Business consistent with past practicepractice or collect or agree to collect any such receivable for less than the amount billed therefor;
(xviii) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid except in the ordinary course of the Business consistent with past practicepractice and except for any such acceleration resulting from the Filings of which Buyer is given notice by Sellers;
(xiix) except as expressly contemplated by Section 7.9, makeallow the levels of Inventory with respect to the Business to decline below the level necessary for the continued operation of the Business or the level customary for the Business in the ordinary course consistent with past practice, or agree fail to makemaintain the Purchased Assets in good condition, any distribution or other disposition of assets (other than cash reasonable wear and cash equivalents) to Seller or any of its Affiliatestear excepted;
(xiix) institute any material new, or any increase (including any increase in coverage) in any existing, profit-sharing, bonus, incentive, deferred compensation, severance insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to directors, officers or employees of any Seller, Transferred Subsidiary or Subsidiary of any Transferred Subsidiary, except, solely with respect to increases, in the Companyordinary course of the Business consistent with prior practice (including, 401(k) plan increased contributions authorized by EGTRRA);
(xi) except for payments related employees who Buyer notifies Seller will not be offered employment by Buyer pursuant to stay bonusSchedule 8.2(a), transaction completion bonusmake any change in compensation (including salary, severance payments bonus or incentive compensation) of the directors, officers, employees of, or independent contractors or consultants to, any Seller, Transferred Subsidiary or Subsidiary of any Transferred Subsidiary, other similar payments than immaterial changes made on or consistent with prior compensation practices, provided that Sellers shall notify Buyer in writing prior to the Closing Date any such changes;
(xii) enter into any collective bargaining, employment, deferred compensation, severance, consulting, independent contractor, nondisclosure, non-competition or similar agreement (or amend any such agreement) to which any Seller, Transferred Subsidiary or Subsidiary of any Transferred Subsidiary is a party or involving any of their directors, officers or employees in his or her capacity as a result director, officer or employee of this Agreement any Seller, Transferred Subsidiary or the transactions contemplated herebySubsidiary of any Transferred Subsidiary;
(xiii) make or rescind any material increase election in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect relation to Taxes;
(xiv) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock, membership interests or other equity interests of any of the Sellers, Transferred Subsidiaries or Subsidiaries of the Transferred Subsidiaries, or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock, membership interests or other securities of, or other ownership interests in, any of the Sellers, Transferred Subsidiaries or Subsidiaries of the Transferred Subsidiaries;
(xv) make transfer, issue, sell or dispose of any change in the accounting policies applied in the preparation shares of capital stock or other securities of the financial statements contained in Schedule 5.4Transferred Subsidiaries or Subsidiaries of the Transferred Subsidiaries, unless such change is required by GAAPor grant or exercise options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Sellers;
(xvi) originateenter into or amend any agreement or incur any commitment that involves or may involve total annual expenditure or revenues individually or in the aggregate in excess of $100,000;
(xvii) except pursuant to the Loan Agreements, acquireincur any indebtedness for borrowed money (including any intra-group borrowings), holdenter into any material guarantee, sellindemnity or other agreement to secure any obligation of a third party or create any Encumbrance (other than a Permitted Encumbrance) for the benefit of a third party over any of the Purchased Assets, transfer, securitize or hedge loans secured except as required by real estate; provided that, Requirements of Law and except in the ordinary course of business the Business consistent with past practice;
(xviii) make any payment, or otherwise remit any monies, to any Seller or its Affiliates for any purpose whatsoever;
(xix) incur any material Liability except in the ordinary course of the Business consistent with past practice;
(xx) change any accounting policy or practice except in the ordinary course of the Business;
(xxi) amend the certificate of incorporation or by-laws or comparable organization documents of the Sellers, Transferred Subsidiaries or Subsidiaries of the Transferred Subsidiaries in any material respect;
(i) modify or terminate any Seller Agreements (other than in the ordinary course of the Business), or (ii) enter into or modify any contract containing material penalties which would be payable as a result of, and upon the consummation of, the Company may originate loans secured transaction contemplated by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companythis Agreement; or
(xviixxiii) make enter into any material change in internal control over financial reporting, other than agreement or commitment to take any change required action prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.5.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Venture Holdings Co LLC), Asset Purchase Agreement (Venture Europe Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 6.4 or as otherwise contemplated by this Agreement or except with the written approval of consented to in writing by Buyer, each of the Seller and the Company shall (and shall cause each Subsidiary to) conduct its business in the ordinary course and shall use its commercially reasonable efforts to (i) preserve intact, in all material respects, the current business organization and ongoing operations of Seller, the Company and the Subsidiaries (including the relationships between Seller, the Company and the Subsidiaries and their respective directors, officers, executives, and managers, although neither shall be required to pay, or promise to pay, any consideration (other than compensation to which such individuals are currently entitled as directors or employees, subject to any changes in compensation in accordance with existing compensation policies, practices or procedures) as an inducement to continue their employment with Seller, the Company or any Subsidiary); (ii) maintain relations and goodwill with suppliers, customers, landlords, employees, creditors, and movie studios with whom Seller, the Company and the Subsidiaries have relationships; (iii) perform in all material respects its obligations under the Material Contracts; (iv) maintain the properties and assets of Seller, the Company and the Subsidiaries in good repair and condition (excluding normal wear and tear); (v) maintain the insurance policies of Seller, the Company and the Subsidiaries in a manner consistent with past practice; and (vi) pay all Taxes as such Taxes become due and payable consistent with past practice.
(b) Except as set forth in Schedule 6.4 or as otherwise contemplated by this Agreement (including with respect to the Contribution) or consented to in writing by Buyer (which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, delayed with respect to any employee of the Companymatters set forth in clauses (vi), (i) transfer such employee to Seller or an Affiliate of Sellerx), (iixi), (xii), (xv) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iiixviii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting of this Section 7.4(a6.4(b)), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, and the Company or the Business, shall not (and Seller cause the Company shall not permit any Subsidiary to:
): (i) amend its articles of incorporation issue, sell or by-laws (deliver any equity interest or similar organizational documents);
any securities convertible into, options with respect to, warrants to purchase or rights to subscribe for, any equity interest; (ii) issueeffect any recapitalization, grantreclassification, sell unit or encumber equity
(a) if entered into prior to the date hereof; (xi) terminate, cause the termination of, amend, renew or extend any shares of its capital stock or other securitiesMaterial Contract, or issuewaive or release any material rights or claims thereunder; (xii) pay, grantdischarge, sell or encumber satisfy any securitymaterial claims or Liabilities, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, than in the ordinary course of business consistent with past practice, or fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, Liabilities, or obligations when due and payable; (xiii) create any new subsidiary; (xiv) adopt a plan of complete or partial liquidation or dissolution; (xv) make any material change in the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf compensation of the directors, officers or salaried employees of Seller, the Company or transfer any loans secured by real estate to the Company;
Subsidiary (vother than employees who will not be Company Employees) and except for (A) enter into any Contract which would have been a Company Agreement if salary increases to salaried employees (other than officers and directors) made in effect on the date hereof, ordinary course of business) and (B) enter into any Contract which would require the consent adoption of a third party retention bonus and/or severance benefit plan established by Seller for the benefit of employees of Seller, the Company or any Subsidiaries, solely to the extent that all bonuses, benefits, or other amounts payable thereunder are deemed to constitute Seller Retention Obligations and are otherwise for the sole account of Parent or Seller; (xvi) dispose of or acquire any assets outside the ordinary course of business consistent with past practice; (xvii) grant any material licenses under any material Company Intellectual Property other than in connection the ordinary course of business; (xviii) make any change in any accounting, auditing, billing or collection practice, except as required by GAAP or Requirements of Law; (xix) make any material change to its ordinary course cash management practices; (xx) mortgage, pledge, or subject to any Encumbrance any asset or property of Seller, the Company or any Subsidiary, whether tangible or intangible, except Permitted Encumbrances; or (xxi) agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary in this Section 6.4 (but otherwise subject to the terms of this Agreement, including, for the avoidance of doubt, Section 6.5), Sections 6.4(a) and 6.4(b) shall not in any way apply to the Retained Assets or Retained Liabilities; provided, that (i) title to the Retained Assets and Retained Liabilities shall remain with Seller or Parent, as applicable, and (ii) any actions taken by Parent or Seller with respect to the Retained Assets and Retained Liabilities shall not interfere with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in adversely effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assumeSubsidiary, or agree to createthe businesses, incur theatres, properties, assets or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets liabilities thereof (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Datede minimis adverse effects), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Marquee Holdings Inc.), Unit Purchase Agreement (Amc Entertainment Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its commercially reasonable efforts to operate to, and shall use its reasonable efforts to cause the Company to Companies to, operate and carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts to, and shall cause the Company Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to, preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingCompanies.
(b) In addition, and without limiting Notwithstanding Section 7.4(a6.4(a), except as expressly set forth in Schedule 6.4 of the Seller Disclosure Schedule, except as contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to not permit the Equity Interests, the Company or the Business, and Seller cause the Company not Companies to:
(i) amend its articles make any material change in the Business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell purchase or encumber otherwise acquire any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities assets or make any other changes capital expenditures, in each case that are material, individually or in the equity capital structure of the Company;
(iii) make any change in aggregate, to the Business or the operations (other than (A) purchases of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, inventory in the ordinary course of business consistent with past practice, (B) capital expenditures contemplated by the Company may originate loans secured fiscal 2006 capital budget for the Business made available to Buyer, (C) capital expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by 1-to-4 family residential real estate in an aggregate principal amount Seller or the Companies, (D) capital expenditures required by any Governmental Body and (E) such capital expenditures not to covered by clauses (A) through (D) above that do not exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of in the Company or transfer any loans secured by real estate to the Companyaggregate);
(viii) (A) enter into exercise any Contract which would have been option to extend a Company Agreement if in effect lease listed on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSchedule 4.9(a)(i);
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of its Affiliates in the ordinary course of business) or grant any Encumbrance with respect to the assets of any of the Companies, in each case other than Permitted Encumbrances, Permitted Real Property Exceptions and Encumbrances imposed by the Credit Agreement;
(ixv) accelerate or delay collection of transfer any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of material assets (other than cash and cash equivalentsin excess of Register Cash prior to the Effective Time) to Seller or any of its AffiliatesAffiliates (other than the Companies);
(xiivi) institute any material increase in the benefits available under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees any Business Employees, other than as expressly required by the terms of any such plan as in effect on the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result date of this Agreement or Requirements of Law;
(vii) (A) grant to any Key Employee any increase in compensation or other material benefits (excluding any retention agreements that do not involve payments by Buyer or the transactions contemplated herebyCompanies to any such Key Employee after the Closing) or grant to any Business Employee any material increase in compensation or other benefits (excluding any retention agreements that do not involve payments by Buyer or the Companies to any such Key Employee after the Closing) except as may be required under existing agreements or in the ordinary course of business consistent with past practice or (B) designate any Business Employee as a participant in the Severance Pay Plan pursuant to Section 2.A(ii) of the Severance Pay Plan;
(viii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto;
(ix) enter into or amend any collective bargaining agreement;
(x) acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, any business or any corporation, partnership, association or other business organization or division thereof;
(xi) sell or otherwise dispose of any assets that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xii) materially adversely modify or amend any Business Agreement;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting methods or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xiv) amend the articles of incorporation or by-laws of the Companies;
(xv) intentionally waive in writing any right of any material value of or with respect to the Business;
(xvi) originateenter into any material agreement, acquirecontract or arrangement with any of its Affiliates relating to the Business;
(xvii) create any new gift certificate, holdgift card, sellmerchandise voucher, transfercoupon or refund program for the Business or amend in any material respect the Seller Gift Programs, securitize or hedge loans secured by real estate; provided thatin each case, other than in the ordinary course of business consistent with past practice;
(xviii) create any new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xix) from the date of this Agreement through September 30, 2006, (A) place any orders (other than fill-in or replenishment orders) for spring 2007 products bearing a Private Brand (as defined in the Company may originate loans secured by 1Private Brands Agreement) or (B) place any fill-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of or replenishment orders for products bearing a Private Brand (as defined in the Company or transfer any loans secured by real estate to the CompanyPrivate Brands Agreement) scheduled for delivery after June 30, 2007; or
(xviixx) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Saks Inc), Stock Purchase Agreement (Belk Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or Sellers covenant and agree that, except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement, the Consulting Agreement or except the Liquidation Agreement, (ii) as disclosed in Schedule 7.2, (iii) with the express prior written approval consent of Buyer (which Buyer agrees consent, other than with respect to Section 7.2(b)(ii), shall not be unreasonably withheld or delayed), Seller (iv) as required by the Bankruptcy Court or (v) as otherwise required by Law, after the Effective Date and prior to the Closing Date:
(a) Sellers shall use commercially reasonable efforts, taking into account Sellers’ status as debtors-in-possession in the Bankruptcy Cases, to carry on the Business in the Ordinary Course of Business, to maintain in full force and effect the Permits, to maintain and preserve the Acquired Assets in their present condition (including by using their commercially reasonable efforts to renew any Business Contracts that come up for renewal in the Ordinary Course of Business), other than reasonable wear and tear and sales of Inventory in the Ordinary Course of Business (for the avoidance of doubt, Sellers shall not be required to replenish inventory), to continue to protect the confidentiality, integrity and security of the IT Assets (and all information and transactions stored or contained therein or transmitted thereby) against any unauthorized use, access, interruption, modification or corruption, and to keep intact the business relationships relating to the Business; and, without limiting the generality of the foregoing,
(b) Sellers shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles other than the sale of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares Inventory in the Ordinary Course of its capital stock or other securitiesBusiness, or issuepursuant to any debtor-in-possession financing or cash collateral agreement or order, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure Order of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatBankruptcy Court, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer (including the transfer from an Acquired Store to a non-Acquired Store), assign, license, convey, surrender, relinquish, abandon, permit to lapse or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or voluntarily impose or suffer to be imposed any Encumbrance (other than Assumed Liabilities and Permitted Encumbrances) on, any of Acquired Asset;
(Aii) the Equity Interests amend, modify, terminate, waive any rights under or (B) the assets or properties create any Encumbrance with respect to, any of the CompanyBusiness Contracts or Real Property Leases or otherwise take any actions not required by the terms of any Business Contract or Real Property Lease that would result in any increase in any payments to be made under such Business Contract or Real Property Lease;
(iii) incur or permit to be incurred any Liability that would be an Assumed Liability outside the Ordinary Course of Business or that would increase the amount of an Assumed Liability;
(iv) incur any long-term expenditure associated with the Acquired Assets that would be an Assumed Liability;
(v) except in the Ordinary Course of Business, other thancancel or compromise any material claim or waive or release any material right, in each case, that is a claim or right related to an Acquired Asset;
(vi) with respect to any Business Employee, increase the case salary, bonus or severance arrangements of this clause (B)such Business Employee or amend, Permitted Encumbrances;modify, terminate or enter into any employment or severance Contract with such Business Employee, or terminate the employment of any Business Employee or other employee of Seller who may be designated hereunder as a Business Employee prior to Closing; or
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related commitment to Taxes, otherwise settle take any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required action prohibited by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.2.
(c) The Company Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (i) nothing contained in this Agreement shall keep all insurance policies set forth on Schedule 5.22give Buyer, directly or suitable replacements thereforindirectly, in full force and effect through the right to control or direct the operations of Sellers or the Business prior to the Closing Dateand (ii) prior to the Closing, Sellers shall exercise, consistent with, and subject to, the terms and conditions of this Agreement, complete control and supervision over the Business and its operations to the extent permitted by Law, including pursuant to the Consulting Agreement and the Liquidation Agreement and taking into account Sellers’ status as debtors-in-possession in the Bankruptcy Cases. Notwithstanding anything herein to the contrary, Sellers shall be permitted to take all actions that are necessary or desirable to comply with the WARN Act, including providing any notices required under the WARN Act, and no such actions shall constitute a violation of this Section 7.2.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Camping World Holdings, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or 7.4, and except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall notcause each of the Company and WHI-IPA to operate and carry on its business in the Ordinary Course of Business and shall cause each of the Company and WHI-IPA to use its reasonable best efforts to maintain the value of its business as a going concern, with respect including by using reasonable best efforts to preserve (to the Equity Interestsextent consistent with the conduct of the business in the Ordinary Course of Business) intact its business organization, keep available the services of its current officers and employees, and preserve the goodwill of and relationships with the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Company and WHI-IPA.
(b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, or except with the written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not permit the Company or the Business, and Seller cause the Company not WHI-IPA to:
(i) amend its articles make any material change in their business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any capital expenditure, capital addition or capital improvement in excess of one hundred thousand dollars ($100,000) other changes than the capital expenditures, capital additions or capital improvements set forth in the equity capital structure of the Company’s fiscal year 2011 budget previously disclosed to Buyer;
(iii) make enter into any change in contract for the Business or the operations purchase of the Company outside the ordinary course of businessreal property;
(iv) make cancel or compromise any capital expenditure claims or enter into any contract Indebtedness held by or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company them (including the settlement of any claims or litigation) in an amount greater than one hundred thousand dollars ($100,000) other than in the Ordinary Course of Business or in accordance with Section 7.5;
(v) sell, license, assign, lease, transfer, convey or otherwise dispose of any of its assets or properties in an amount greater than one hundred thousand dollars ($100,000);
(vi) mortgage, pledge or subject to any Encumbrance any of its assets or properties, other than Permitted Encumbrances;
(vii) create, incur or assume any material obligation or liability with respect to, any Indebtedness, other than ordinary course working capital borrowings pursuant to contracts to which it is a party that are in effect on the date of the Business consistent with past practicethis Agreement;
(viii) create, incur or assume, or agree make any loan to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businessthird party;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and or cash equivalents) to Seller or any of its Affiliates;
(xiix) institute any material increase in any benefit provided under any profit-sharing, bonus, incentive, deferred compensation, severance, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to maintained for their employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made service providers, other than as required by any such plan which is described on Schedule 5.16 or prior to Requirements of Law or any change in the Closing Date as a result Ordinary Course of this Agreement or the transactions contemplated herebyBusiness consistent with past compensation practices;
(xiiixi) make any material increase change in the cash compensation of the their employees of the Companyor other service providers, other than changes made in accordance with normal compensation practices the Ordinary Course of Business and consistent with past compensation practicespractices or pursuant to existing contractual commitments described on Schedule 5.16;
(A) except as required by applicable Requirements provide any employee or other service provider with increased security or tenure of Law, prepare employment or file grant any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any electionright to severance or termination pay, or adopt enter into or amend any method that is inconsistent employment, severance, change in control or retention agreement with positions taken, elections made any employee or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or other service provider; (B) settle increase the amount payable to any employee or otherwise compromise other service provider upon the termination of any claim such employee’s or service provider’s service; or (C) make any material change in management structure, including the hiring, promotion, demotion or termination of officers;
(xiii) make any change in its customary methods of accounting or the accounting policies and practices applied in the preparation of the Financial Statements, or, except in the Ordinary Course of Business, pricing policies or payment credit practices;
(xiv) make or change any election related to Taxes, adopt or change any Tax accounting method or accounting period for Tax purposes, amend any Income Tax Return or other material Tax Return, enter into any closing agreement or similar agreement related to Taxesagreement, otherwise settle any dispute relating material Tax claim or assessment, surrender any right to claim a refund for Taxes, or request consent to any ruling extension or similar guidance with respect waiver of the limitation period applicable to Taxesany Tax claim or assessment relating to Seller (insofar as related to a Taxpayer) or any Taxpayer, in each case, that would reasonably be expected to result in an increase in the taxable income or Taxes of a Taxpayer after the Closing Date;
(xv) make any change in the accounting policies applied in the preparation their charters or by-laws or issue any shares of the financial statements contained in Schedule 5.4capital stock or other equity securities (including, unless without limitation, any shares of common stock, option, stock appreciation right, stock purchase right, restricted stock or other equity compensation or performance unit) or any security, option, warrant or other right convertible into or exercisable or exchangeable for any such change is required by GAAPcapital stock or equity securities;
(xvi) originatesplit, acquiresubdivide, holdrecapitalize or otherwise effect any change in respect of any of its capital stock or other equity securities;
(xvii) accelerate, sellterminate, transfermodify, securitize or hedge loans secured by real estate; provided thatamend (in each case, in any material respect) or exercise any remedy with respect to, or waive any material right under, any Business Agreement;
(xviii) enter into any Business Agreement other than in the ordinary course Ordinary Course of business consistent Business;
(xix) enter into any transaction with past practiceany stockholder, employee, director, officer, or Affiliate of Seller, the Company may originate loans secured by 1or WHI-to-4 family residential real estate IPA, other than payment or provision of salary, benefits or other compensation in an aggregate principal amount not the Ordinary Course of Business to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf officers, directors, employees or consultants of the Company or transfer WHI-IPA;
(xx) consummate (A) any loans secured by real estate to merger, consolidation or other business combination, (B) the Companypurchase of any material assets of any Person or (C) the purchase of any capital stock of or interest (including for such purposes convertible securities or instruments) in any Person; or
(xviixxi) make enter into any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22contract, or suitable replacements thereforotherwise become obligated, in full force and effect through the Closing Dateto do any action prohibited under this Section 7.4.
Appears in 1 contract
Sources: Stock Purchase Agreement (Catalyst Health Solutions, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth on Schedule 7.1 and except as otherwise permitted by the prior written consent of Buyer, during the period from the date of this Agreement to the Closing Date: (i) the business of Seller shall be conducted only in, and neither Globe nor the Seller shall take any action except in, the Ordinary Course; and (ii) Globe and Seller shall use their reasonable best efforts to preserve the business of Seller substantially intact, to preserve the value of the assets and properties, wherever located, that are material to Seller in Schedule 7.4 or existence on the date hereof, to comply with all Laws and requirements of any Governmental Authority applicable to Seller and to preserve the present relationships of Seller with customers, suppliers and other persons with which Seller has business relations. By way of amplification and not limitation, except as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewithAgreement, Seller shall not, between the date of this Agreement and shall not permit the Company toClosing Date, with respect directly or indirectly, do, or propose or agree to do, any employee of the Companyfollowing, except as set forth on Schedule 7.1 hereto and except as permitted by the prior written consent of Buyer:
(a) either (i) transfer such employee to Seller split, combine or an Affiliate reclassify any of Sellerits Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its Capital Stock, or (ii) offer such employee employment by Seller purchase, redeem or an Affiliate otherwise acquire any shares of Seller after Capital Stock or the Closing Date Capital Stock of any of its subsidiaries or (iii) otherwise attempt any other securities thereof or any rights, warrants, or options to persuade acquire any such employee shares or other securities. Buyer understands and agrees that Globe relies upon Seller to terminate his or her relationship with the Company or not meet Globe's liquidity needs and that, prior to Closing, Globe will continue employment with the Company after the Closing.to cause Seller to distribute funds to Globe;
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grantdeliver, sell sell, pledge or otherwise encumber any shares of its capital stock Capital Stock, any other voting securities or other securitiesany securities convertible into, or issueany rights, grantwarrants or options to acquire, sell or encumber any securitysuch shares, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other voting securities or make any other changes in the equity capital structure of the Companyconvertible securities;
(iiic) make any change in the Business amend its charter or the operations of the Company outside the ordinary course of businessbylaws or other comparable organizational documents, as applicable;
(ivd) make agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any capital expenditure other manner, any business or any corporation, limited liability company, partnership, joint venture or other entity or division thereof or (y) any assets that individually or in the aggregate are material to Seller, except for purchases of inventory in the Ordinary Course;
(e) either (i) incur any Indebtedness or guarantee any Indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any contract or commitment therefor in excess arrangement having the economic effect of $50,000; provided thatany of the foregoing, except for short-term borrowings incurred in the ordinary course of business Ordinary Course consistent with past practicethe Ordinary Course, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (Cii) modifymake any loans, amendadvances or capital contributions to, terminate or grant investments in, any consent or waiver under any Company Agreement other person, other than Seller or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer direct or otherwise dispose indirect subsidiary of (including any transfers from the Company Seller or to officers and employees of Seller or any of its Affiliates)subsidiaries for travel, business or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, relocation expenses in the case of this clause (B), Permitted EncumbrancesOrdinary Course;
(viif) cancel pay, discharge, settle or satisfy any debts owed to claims, liabilities or claims held by the Company obligations (including the settlement of any claims absolute, accrued, asserted or litigation) unasserted, contingent or otherwise, other than the payment discharge, settlement or satisfaction in the ordinary course Ordinary Course of liabilities reflected or reserved against in, or contemplated by, the Business consistent with past practiceFinancial Statements, incurred since the date of such Financial Statements in the Ordinary Course, or which do not in the aggregate have a Material Adverse Effect;
(viiig) createeither (i) amend (other than as required by Laws) any benefit plan of Seller in any material respect, incur (ii) increase the compensation or assumebonus opportunity of any employee of Seller, except for any increases in the Ordinary Course, or (iii) grant any additional equity based compensation to any employee of Seller, except for grants in the Ordinary Course;
(h) make or agree to create, incur make any new capital expenditure or assume, any Indebtedness capital expenditures which individually is in excess of $10,000 or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course aggregate are in excess of business$25,000;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvi) make any change in the to its accounting policies applied in the preparation of the financial statements contained in Schedule 5.4methods, unless such change is principles or practices, except as may be required by GAAP;
(xvij) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, make any tax election with respect to Seller;
(k) sell (except in the ordinary course Ordinary Course), assign, pledge, dispose of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate or encumber any loans secured by real estate on behalf of the Company assets or transfer properties of Seller;
(l) fail to defend or initiate any loans secured by real estate matter or proceed with any matter before any governmental, regulatory or administrative authorities that is necessary to protect Seller;
(m) fail to (i) maintain the assets or properties of Seller in customary repair, order and condition in all respects, (ii) maintain insurance for Seller reasonably comparable in all material respects to that in effect on the date of this Agreement or (iii) in the event of a casualty, loss or damage to any of the assets or properties of Seller prior to the CompanyClosing Date for which the Seller are insured, either repair or replace such damaged assets or, at the option of the Buyer, transfer the proceeds of such insurance to the Buyer;
(n) fail to comply with all Laws and all material contractual obligations applicable to Seller;
(o) terminate, replace, settle any dispute under, amend or otherwise modify any material Contract or waive any of the obligations of the parties (other than the Seller's) to such material Contracts or the Seller's rights under any of such agreements relating to the Business; or
(xviip) make enter into or agree to any material change contract, commitment, arrangement or understanding in internal control over financial reportingrelation to the Business which, other than any change if entered into on the date hereof, would be required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesbe disclosed on a Schedule to this Agreement, unless disclosed to Buyer.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Company and the Subsidiaries to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operatedconsistent with past practice. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets each of the Company in good operating condition and repair and shall the Subsidiaries to use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, Company and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiaries.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth in Schedule 7.4, except as contemplated by this Agreement (including the transfers of Excluded Assets and assumption of Excluded Liabilities contemplated by Section 7.7) or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, not permit the Company or and the Business, and Seller cause the Company not Subsidiaries to:: 29
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations its operations, except such changes as may be required to comply with any applicable Requirements of the Company outside the ordinary course of businessLaw;
(ivii) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that100,000;
(iii) except as required by applicable law, in the ordinary course of business consistent with past practicemake or change any Tax election, file any amended Tax Return, or settle or offer to settle any claim relating to Taxes if such election, amended Tax Return or settlement would have a material adverse impact on the Company may originate loans secured by 1-to-4 family residential for periods beginning after the Closing Date.
(iv) enter into any contract for the purchase or lease of real estate property or exercise any option to extend a lease listed in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySchedule 5.9;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) its assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the Equity Interests or (B) the assets or properties ordinary course of the Company, Business and other than, in the case of this clause (B), than Permitted Encumbrances;
(viivi) cancel cancel, prepay or otherwise provide for a complete or partial discharge in advance of a scheduled payment date with respect to, or waive any right of the Company or any Subsidiary under, any debts of or owed to or claims held by the Company or any Subsidiary (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practiceBusiness;
(viiivii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixviii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business consistent with past practice;
(xix) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practice;
(xix) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentscash) to Seller or any of its Affiliates;
(xiixi) institute any material increase in any benefit provided under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees maintained for its employees, other than as required by any such plan or Requirements of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyLaw;
(xiiixii) make any material increase change in the compensation of the employees of the Companyits employees, other than changes made in accordance with normal compensation practices or pursuant to existing contractual commitments and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvxiii) make any material change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Interim Financial Statements, unless such change is required by GAAP;; or
(xiv) make any change in the charter or by-laws of the Company or any of the Subsidiaries or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock).
(xv) settle or compromise any litigation or claim with respect to which Buyer is or will be liable or responsible under this Agreement; or
(xvi) originateenter into any contract that (A) involves the payment or potential payment, acquirepursuant to the terms of any such contract, hold, sell, transfer, securitize by or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate Subsidiary of more than $100,000 annually and (B) cannot be terminated within sixty (60) days after giving notice or termination without resulting in any material cost or penalty to the CompanyCompany or any Subsidiary; or
(xvii) make any material change in internal control over financial reporting, other than in the ordinary course of business, enter into, terminate (partially or completely), grant any change required by GAAP or written waiver under, give any change made by Seller written consent with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies or materially amend or modify any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 5.14 if in effect on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Datedate hereof.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated approved by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedpursuant to Section 4.4(b) below, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business business of the Station only in the ordinary course and substantially as presently operatedconsistent with past practices. Consistent with the foregoing, Seller shall cause the Company to keep retain ownership of and maintain the material assets of the Company Purchased Assets in good operating condition and repair (wear and tear in ordinary usage excepted), and shall use its reasonable best efforts consistent with good business practice to retain the Station's libraries of films and other programming, to maintain the business organization of the Company Station intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingStation.
(b) In addition, and without limiting Notwithstanding Section 7.4(a4.4(a), except as expressly contemplated by this Agreement Agreement, except as set forth in Schedule 4.4(b) or except with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with in respect to of the Equity Interests, the Company or the Business, and Seller cause the Company not toStation:
(i) amend its articles make any material change in the operations of incorporation or by-laws (or similar organizational documents)the Station;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure expenditure, or enter into any contract or commitment therefor therefor, in excess of $10,000 in the aggregate;
(iii) enter into any contract, agreement, undertaking or commitment (or any extension or renewal thereof) which would have been required to be set forth in Schedule 2.19 if in effect on the date hereof, other than leases, contracts or other agreements that are entered into by Seller in the ordinary course of business or that do not give rise to a liability in excess of Fifty Thousand Dollars ($50,000; provided that) in the aggregate annually;
(iv) amend or consent to the amendment of any contract, agreement, undertaking or commitment listed in Schedule 2.19, the effect of which is to cause the terms of such contract, agreement, undertaking or commitment to be materially less favorable to Seller or Buyer than prior to such amendment or consent to amendment;
(v) sell, lease, transfer or otherwise dispose of or mortgage or pledge, or impose any Encumbrance on, any of the Purchased Assets, other than (A) Tangible Personal Property having a value, in the aggregate, of less than Ten Thousand Dollars ($10,000) sold or otherwise disposed of or consumed in the ordinary course of the business consistent with past practice, (B) minor amounts of Tangible Personal Property having a value, in the aggregate, of less than Ten Thousand Dollars ($10,000) which are replaced due to defect or obsolescence with Tangible Personal Property of substantially the same nature or equal or greater quality in the ordinary course of the business consistent with past practice and the provisions of this Section 4.4 and (C) Permitted Encumbrances;
(vi) create, incur, guarantee or assume, or agree to create, incur, guarantee or assume, any indebtedness for borrowed money in respect of the Station or enter into any capitalized leases;
(vii) make any change in the compensation of the employees of the Station, other than changes made in accordance with existing agreements and normal compensation practices;
(viii) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 2.3;
(ix) cancel or agree to cancel without fair consideration therefor any debts owed to or claims held by Seller in respect of the Station (including the settlement of any claims or litigation which could have a material adverse effect on the operation or future prospects of the Station);
(x) accelerate collection of any notes or accounts receivable generated by the Station to a date prior to the date such collection would have occurred in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xxi) delay or accelerate payment of any account payable or other liability of the Company Station beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-profit sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, Station other than (A) as required by law, and (B) changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided thatare not, in the ordinary course of business consistent with past practiceaggregate, the Company may originate loans secured by 1material in amount or effect, or changes which affect Seller's employees on a company-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companywide basis; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gaylord Entertainment Co)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as otherwise expressly contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedAgreement, Seller shall use its reasonable efforts cause the Company prior to the Closing Date to operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to (i) keep and maintain the material assets of and properties to be retained by Company after the Company Closing in good operating condition and repair and (ii) prior to the Closing, shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, not permit the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents)laws;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or ; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided thatwhich, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, would have been required to be set forth in (Ba) Schedule 4.15(A), Schedule 4.15(B), or Schedule 4.15(C), except as consistent with maintenance of efforts provisions of Exhibit 6.4(B)(iii) or (b) Schedule 4.15(D) or Schedule 4.15(E), except with the prior written consent of Buyer or enter into any Contract contract which would require requires the consent or approval of a any third party in connection with the consummation of to consummate the transactions contemplated by this Agreement Agreement; or (C) modify, amend, terminate or grant make any consent or waiver under material modification to any existing Company Agreement or any Contract that would have been a Company Agreement if it were contract or agreement set forth in effect on the date hereof;
(viSchedule 4.15(D) sell, lease (as lessor), transfer or otherwise dispose of (including Schedule 4.15(E) or to any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the CompanyGovernmental Permits, other than changes made in accordance with normal compensation practices and consistent with past compensation practicesgood faith to cure document deficiencies;
(Aiv) except as required by applicable Requirements make any material change in the accounting policies applied in the preparation of Law, the financial statements contained in Schedule 4.4;
(v) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to Section 9.1(b) or accelerating deductions to periods ending on for which Seller is liable pursuant to Section 9.1(a);
(vi) file with either the Alabama Department of Insurance or before the Closing DateFlorida Department of Insurance or submit for filing any increase or decrease, or amendment, modification or termination of any of Company's rates now filed with the Alabama Department of Insurance or the Florida Department of Insurance, as applicable;
(vii) notwithstanding the provisions of Section 6.4(b)(iii), enter into, renew, extend, amend, modify, terminate or waive any rights with respect to any Group Service Agreements or Individual Service Agreements which provided for rate quotes which do not comply with the Company's rates now filed with the Alabama Department of Insurance or the Florida Department of Insurance, as applicable;
(Bviii) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related commitment to Taxes, otherwise settle take any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required action prohibited by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 6.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Stock Purchase Agreement (Coventry Health Care Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or below, as otherwise contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to during the Equity InterestsPre-Closing Period, the Company or shall (a) conduct its business only in the BusinessOrdinary Course of Business and (b) use commercially reasonable efforts to (i) keep available the services of the current officers, key employees and Seller cause consultants of the Company, (ii) preserve the current relationships of the Company with such of the clients, suppliers, licensors, licensees, distributors, customers, landlords, employees, agents and other Persons with which the Company has significant business relations and (iii) preserve substantially intact its business organization. Without limiting the generality of the foregoing, except as set forth below, as otherwise contemplated by this Agreement or with the approval of Buyer (which shall not tobe unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not:
(i) amend or otherwise change its articles of incorporation or by-laws (or similar organizational documents)bylaws;
(ii) issue, grantsell, sell or encumber any shares of its capital stock or other securitiespledge, or issuedispose of, grant, sell transfer, encumber, or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for authorize the acquisition, issuance, sale, pledge pledge, disposition, grant, transfer or other disposition of encumbrance of, any shares of its capital stock or other securities or make any other changes Equity Interests in the equity capital structure of the CompanyCompany (including any such interest represented by Contract right);
(iii) declare, set aside, make or pay any change in the Business dividend or the operations other distribution (other than (A) tax distributions consistent with past practices of the Company outside to enable Sellers to pay estimated Taxes and (B) other dividends payable in cash that will not result in the ordinary course Closing Net Asset Value being less than the Reference Net Asset Value and with respect to which the Company has provided Buyer with prior notice) with respect to any of businessits Equity Interests or enter into any agreement with respect to its Equity Interests;
(iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests;
(A) acquire (including by merger, consolidation or acquisition of stock or assets) any Equity Interests in any Person or any division thereof or any assets, other than in the Ordinary Course of Business, (B) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than in the Ordinary Course of Business, or (C) enter into or amend any Contract or other arrangement that, if fully performed, would not be permitted under this Section 5.3;
(vi) defer the payment of any expenses beyond the date such expenses are due except in the Ordinary Course of Business;
(vii) make any single capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company150,000;
(v) (Aviii) enter into or amend any Contract which would have been contract for the purchase or lease (as lessor or lessee) of real property or exercise any option to extend a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofLease;
(viix) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or license, mortgage or pledge, pledge or impose or suffer to be imposed any Encumbrance (other than Permitted Encumbrances or Encumbrances that will be released on or before the Closing Date) on, any of (A) its assets, in whole or in part, other than sales of inventory in the Equity Interests Ordinary Course of Business, personal property sold or (B) otherwise disposed of in the assets Ordinary Course of Business that is obsolete or properties is not material to its business and dividends of cash to Sellers in respect of the Company, other than, Shares that will not result in the case of this clause (B), Permitted EncumbrancesClosing Net Asset Value being less than the Reference Net Asset Value and with respect to which the Company has provided Buyer with prior written notice;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiix) create, incur or incur, assume, or agree to create, incur incur, or assumeassume or guarantee, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), for Borrowed Money other than money borrowed or advanced in the ordinary course Ordinary Course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceBusiness;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase change in the compensation of the employees of or consultants to the Company, other than changes made in accordance with normal compensation practices and consistent with past practices of the Company or changes required by employment agreements identified on Schedule 3.18(a)(i) or by any Law, or otherwise change, alter or enter into any employment agreement or consulting arrangement other than in the Ordinary Course of Business;
(xii) hire any new employees, agents or consultants except to replace existing employees, agents or consultants at similar compensation practiceslevels and except for any new employees hired in the Ordinary Course of Business;
(A) establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, equity incentive, option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant, except as to the extent required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), ; or (B) settle take any affirmative action to amend or otherwise compromise waive any claim related to Taxesperformance or vesting criteria or accelerate vesting, enter into exercisability, timing of payment or funding under any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to TaxesCompany Plan;
(xvxiv) make any material change in the accounting principles, methods, practices or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvixv) originatewaive, acquirerelease, holdassign, sellsettle or compromise any debt owed to the Company by any Person or any claims, transfer, securitize or hedge loans secured by real estate; provided thatother than adjustments made to Contracts with the Company’s clients in the Ordinary Course of Business that are, in the ordinary course aggregate, not material to the Company, or any material Actions;
(xvi) other than with respect to any Contract that has already been identified to Buyer or about which Sellers’ Representative has notified Buyer prior to the date hereof, (A) enter into any Contract that would be included in the definition of business consistent with past practiceCompany Material Contract or make any material modification to any existing Company Material Contract, in each case other than any Contracts or extensions that (1) have a term of one year or less, or (2) involve $150,000 or less, or are entered into or modified in the Ordinary Course of Business, or (B) enter into or make a Bid for any material Government Contract or firm fixed price Government Contract having expected profit margins that are less than 15%;
(xvii) loan or advance any amount to, or enter into any Contract with, or otherwise engage in any transaction with, any director, officer or holder of an Equity Interest in the Company may originate loans secured by 1or any of their respective Affiliates, except for payment of salary or expenses, advancement to directors, officers or employees in the Ordinary Course of Business and cash dividends to Sellers;
(xviii) make or change any Tax election, adopt or change any accounting method in respect of Taxes, file any Tax Return or an amendment to a Tax Return other than the Company’s corporate Income Tax Returns for all Pre-to-4 family residential real estate Closing Tax Periods, enter into any closing agreement, settle any claim or assessment in an aggregate principal amount not respect of Taxes, or consent to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes if such election, adoption, change, amendment, agreement, settlement, consent or other action would have the effect of increasing the Tax liability of the Company or transfer for any loans secured by real estate to period ending after the CompanyClosing Date, except in the Ordinary Course of Business; or
(xviixix) make revoke the Company’s election to be taxed as an S Corporation or allow any material change in internal control over financial reporting, action other than any change required by GAAP or any change made by Seller with respect the sale of the Shares pursuant to all this Agreement that would result in the termination of its Controlled Affiliatesthe Company’s status as a validly electing S Corporation.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Share Purchase Agreement
Operations Prior to the Closing Date. (a) Except Seller shall operate and carry on the Business (excluding the Excluded Assets, Excluded Liabilities and Employees who are not to be hired by Buyer pursuant to Section 8.4(a)) only in the ordinary course consistent with past practice except as set forth in Schedule 7.4 or as otherwise contemplated by this Agreement or except Agreement. Consistent with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld foregoing and to the extent permitted or delayedrequired by the Bankruptcy Proceedings, Seller shall use its reasonable best efforts to operate and shall use its reasonable efforts to cause the Company to carry on continue operating the Business only in (excluding the ordinary course Excluded Assets, Excluded Liabilities and substantially Employees who are not to be hired by Buyer pursuant to Section 8.4(a)) as presently operated. Consistent with the foregoinga going concern, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company Business (excluding the Excluded Assets, Excluded Liabilities and Employees who are not to be hired by Buyer pursuant to Section 8.4(a)) intact and to preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness (excluding the Excluded Assets, Excluded Liabilities and Employees who are not to be hired by Buyer pursuant to Section 8.4(a)). In connection therewith, and except for Employees who are not to be hired by Buyer pursuant to Section 8.4(a), Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from the Business any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller for any period on or an Affiliate of Seller after the Closing Date to any such employee or agent regarding whom Buyer makes offers of employment (if any), or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Section 7.4(a), except Except (x) as expressly contemplated by this Agreement or except Agreement, (y) with the express written approval of Buyer or (which Buyer agrees shall not be unreasonably withheld or delayed)z) with respect to the Excluded Assets and Excluded Liabilities, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles make any capital expenditure in excess of incorporation $25,000 in the aggregate with respect to the Business or by-laws (enter into any Contract or similar organizational documents)commitment therefor;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which for or relating to the Business that would have been a Company Agreement required to be set forth in Sections 5.8, 5.9, 5.10 or 5.16 of the Disclosure Schedule if in effect on the date hereof, or enter into any Contract for or relating to the Business that cannot be assigned to Buyer or a permitted assignee of Buyer under Section 12.5;
(Biii) enter into any Contract which would require for the consent purchase of real property to be used, or held for use in, or otherwise relating to the Business or exercise any option to extend a third party lease listed in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSchedule 2.1(g);
(viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company Business to Seller or any Affiliates of its AffiliatesSeller), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance onon (other than Permitted Encumbrances and Assumed Liabilities), any of (A) the Equity Interests or (B) Purchased Assets, other than the assets or properties sale of Inventory for fair value in the ordinary course of the Company, other than, in the case of this clause (B), Permitted EncumbrancesBusiness consistent with past practice;
(viiv) cancel any debts owed to or claims held by the Company Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivi) create, incur or assumeenter into, or agree to create, incur or assumeenter, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businesssale-leaseback transactions;
(ixvii) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected dates, except in the ordinary course of the Business consistent with past practicepractice or collect or agree to collect any such receivable for over $5,000 less than the amount billed therefor;
(xviii) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid except in the ordinary course of the Business consistent with past practicepractice and except for any such acceleration resulting from the Filing of which Buyer is given notice by Seller;
(xiix) except as expressly contemplated by Section 7.9allow the levels of raw materials, makesupplies, or agree work-in-process, finished goods, packaging materials, samples and other materials included in the inventory of the Business to make, any distribution or other disposition decline below the level necessary for the continued operation of assets (other than cash and cash equivalents) to Seller or any of its Affiliatesthe Business;
(xiix) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of Seller rendering services to the CompanyBusiness, except for payments related to stay bonusin the ordinary course of the Business consistent with past practice (including, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby401(k) plan increased contributions authorized by EGTRRA);
(xiiixi) except for Employees who are not hired by Buyer pursuant to Section 8.4(a), make any material increase change in the compensation of the employees of Seller rendering services to the CompanyBusiness, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on practices and Seller shall promptly notify Buyer regarding any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companychanges; or
(xviixii) make enter into any material change in internal control over financial reporting, other than agreement or commitment to take any change required action prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicalogic/Medscape Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course consistent with past practice and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair (subject to normal wear and tear) and shall use its commercially reasonable best efforts consistent with good business past practice to maintain the business organization of Seller with respect to the Company Business intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with Seller with respect to the CompanyBusiness. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, Transferring Employee (i) transfer such employee to another business unit of Seller or an Affiliate any of Sellerits Affiliates, or (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company Seller or not to continue commence employment with the Company Buyer after the Closing.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement or except with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of Seller with respect to the Company outside Business other than in the ordinary course of business;business consistent with past practice.
(ivii) make any capital expenditure or enter into any contract or commitment therefor expenditures in excess of $50,000; provided that, 100,000 other than in the ordinary course of business consistent with past practice;
(iii) except for contracts with customers entered into in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.16 if in effect on the date hereof, (B) hereof or enter into any Contract which would require the consent of a third party contract in connection with the consummation respect of the transactions contemplated by this Agreement Business which cannot be assigned to Buyer or (C) modify, amend, terminate or grant any consent or waiver a permitted assignee of Buyer under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSection 13.5;
(viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company by Seller to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than purchase money security interests and inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viiv) cancel any debts owed to or claims held by Seller with respect to the Company Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixvi) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xvii) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiviii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior Seller with respect to the Closing Date as a result of this Agreement or the transactions contemplated herebyBusiness, other than changes made in accordance with normal benefits practices and consistent with past benefit practices;
(xiiiix) make any material increase change in the compensation of the employees of Seller with respect to the CompanyBusiness, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;; or
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvx) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (West Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Asset Sellers (solely with respect to the Assets and the Business) and the Purchased Entities to operate and shall use its reasonable efforts to cause the Company to carry on the Business only and operate and maintain the Assets in the ordinary course and substantially in all material respects as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain cause the Companies to preserve intact their operations, Governmental Permits, physical facilities, working conditions and business organization of the Company intact and preserve the goodwill and available services of and relationships with the suppliers, contractors, licensors, licensees, officers, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewithPurchased Entities or, Seller shall not, and shall not permit in the Company tocase of the Asset Seller, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In additionNotwithstanding SECTION 7.4(A), and without limiting Section 7.4(a)except as set forth in SCHEDULE 7.4, except as expressly contemplated by this Agreement or except with the prior express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, delayed or delayedconditioned), Seller shall not, not permit the Asset Sellers (solely with respect to the Equity Interests, Assets and the Company Business) or the Business, and Seller cause the Company not Purchased Entities to:
(i) amend its articles make any material change in the Business or their operations or any other change that would reasonably be expected to harm in any material respect their operations, physical facilities, working conditions or business organizations and their respective relationships with suppliers, contractors, licensors, licensees, officers, employees, customers, distributors and others having business relations with the Companies, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell purchase or encumber otherwise acquire or lease or license from a Third Party any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities assets or make any other changes Capital Expenditures, in each case that are material, individually or in the equity capital structure of the Company;
(iii) make any change in aggregate, to the Business as a whole (other than (A) purchases of inventory or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, merchandise in the ordinary course of business consistent with past practice; (B) Capital Expenditures contemplated by the Business's fiscal 2005 capital budget or annual operating plan or fiscal 2006 capital budget, the Company may originate loans secured annual operating plan or its long range plan made available to Buyer; (C) Capital Expenditures required by 1-to-4 family residential real estate in an aggregate principal amount any Governmental Body and (D) such Capital Expenditures not to covered by CLAUSES (A) through (C) above that do not exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of 1 million in the Company or transfer any loans secured by real estate to the Companyaggregate);
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiii) create, incur incur, guarantee or assume, or agree to create, incur incur, guarantee or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations Debt from Third Parties (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of its Affiliates in the ordinary course of businessbusiness consistent with past practice);
(ixiv) accelerate transfer, sell, lease, assign, license, abandon or delay collection otherwise dispose of any notes assets or accounts receivable property, tangible or intangible, in advance each case, for consideration in excess of $100,000 individually and up to $250,000 in the aggregate (other than sales of inventory or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected merchandise in the ordinary course of the Business business consistent with past practicepractice and other than cash prior to the Closing Date);
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, retention, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect Employee Benefit Plan or Required Plan payable or to employees become payable to the Employees of the CompanyBusiness (including any acceleration of vesting of benefits) or adopt or amend any such Employee Benefit Plans (or similar plans, except for payments related to stay bonus, transaction completion bonus, severance payments programs or other similar payments made on arrangements) or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make pay any material increase in the compensation of the employees of the Companybenefits not otherwise due, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable any such plan or Requirements of Law, prepare except in accordance with the Retention Agreements; or file institute any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods increase (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, other than in the ordinary course of business consistent with past practice) in any bonus or incentive compensation payable with respect to any Key Independent Agent;
(vi) except in the ordinary course of business consistent with past practice (but not in excess of 5% of existing compensation or benefits), the Company may originate loans secured by 1-to-4 family residential real estate grant to any Key Employee or any Key Independent Agent any increase in an aggregate principal amount not compensation or other material benefits (including any retention agreements), or grant to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf Employee of the Company Business who is not a Key Employee any material increase in compensation or transfer other material benefits, except as may be required under agreements or the bonus plans existing on the date hereof or in accordance with the Retention Agreements;
(vii) enter into or amend any loans secured collective bargaining agreement;
(viii) acquire by real estate merger or consolidation with, or by purchase of or investment in, any amount of the Capital Stock or assets of, any business or any Person or division thereof;
(ix) enter into any transaction or Contract which is not in the ordinary course of business consistent with past practice;
(x) terminate or waive compliance with any material terms of any Business Agreement or materially and adversely modify or amend any Business Agreement;
(xi) make or change any tax election for any Purchased Entity, settle or compromise any audit or Action for any Purchased Entity, change any method of accounting or enter into any arrangements with respect to Taxes which are binding with respect to post-Closing Taxable periods for any Purchased Entity, change the Tax status of any Purchased Entity for U.S. federal or other Tax purpose including through a "check 62 the box" election or otherwise or change the structure or the ownership of the Purchased Entities;
(xii) except as required by GAAP, make any change in credit practices or methods of maintaining books, accounts or business records or accounting policies, practices, principles or the methods by which such policies, practices or principles are applied for tax or financial reporting purposes;
(xiii) create any new Encumbrance (other than Permitted Encumbrances) on any material asset;
(xiv) amend the certificates of incorporation or bylaws or similar organizational documents of any Purchased Entity;
(xv) enter into any joint venture or other similar agreement or arrangement;
(xvi) repurchase, redeem or otherwise acquire outstanding Securities, or split, combine, or otherwise similarly change the outstanding shares of the Securities, or authorize the creation or issuance of, or issue or sell any shares of or give any Person any right to acquire from them, any shares of any Purchased Entity's Capital Stock, or declare, set aside or pay any dividend or distribution with respect to the Company; orCapital Stock of any Purchased Entity other than dividends, or distributions payable in cash;
(xvii) make any material loan, advance or capital contributions to any Person involving an aggregate amount in excess of $50,000;
(xviii) fail to promptly pay and discharge any current Liabilities when due, except for current Liabilities that are disputed in the ordinary course of business consistent with past practice in good faith;
(xix) enter into any intercompany Contract or amend any existing intercompany Contract (other than to effect the provisions of SECTION 7.6) in a manner adverse to the Business;
(xx) close any of the manufacturing facilities of the Business;
(xxi) adopt, enter into or amend any employment, consulting, severance, change in internal control over financial reportingcontrol, compensation or similar agreement, or incentive plan, severance plan, bonus plan, stock, stock option or similar plan, or any other employee benefit plan, program or policy for the benefit or welfare of any current or former employee, officer, director or consultant of any Purchased Entity or any Business Asset Employee;
(xxii) settle or compromise any Action that restricts the operation of the Business after Closing;
(xxiii) transfer, sell, lease, assign, pledge, license or otherwise dispose of to any Person other than a Company or encumber any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.Company Intellectual Property;
(cxxiv) The Company shall keep all insurance policies set forth on Schedule 5.22, reclassify any Key Independent Agent as an employee of the Business; or
(xxv) agree to do or suitable replacements therefor, permit any of the foregoing or make any agreement or commitment which will result in full force and effect or cause to occur a violation of any of the items contained in CLAUSES (I) through the Closing Date(XXIV).
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Tupperware Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with From the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayeddate hereof to the Closing Date, Seller shall use its reasonable efforts to operate and shall use its commercially reasonable efforts to cause the Company to and the Subsidiary to, and the Company shall and shall cause the Subsidiary to, operate and carry on the Business only (and will use commercially reasonable efforts to cause the Funds and the Exempt Fund Clients to conduct their business) in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and Subsidiary shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokersClients, lenders and investors, distributors or others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiary.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth on Schedule 7.4(b), except as contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or and the BusinessSubsidiary shall not and, and Seller where applicable, AMR shall cause the Company not toAA to not:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside the ordinary course of businessits operations, except such changes as may be required to comply with any Applicable Law;
(ivii) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, 50,000 (in the ordinary course of business consistent with past practice, aggregate for both the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of and the Company or transfer any loans secured by real estate to the CompanySubsidiary);
(v) (Aiii) enter into any Contract which would have been contract for the purchase of real property or exercise any option to extend a Company Agreement if lease listed in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSchedule 5.10;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), ) other than money borrowed or advances from any of its Affiliates in the ordinary course of business;
(ixv) accelerate declare, set aside or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution dividend or other disposition payment or distribution of cash or assets (other than cash and cash equivalents) to Seller AMR or any of its AffiliatesAffiliates (other than the Company or the Subsidiary) or any other Person, other than Pre-Closing Cash Dividends that would not cause the cash and cash equivalents balance of the Company as of the Closing to be less than an amount equal to the sum of (A) $500,000; and (B) the total amount of the payments that the Company will be obligated to make under Section 8.1(k);
(xiivi) institute any material new, or permit any increase in any existing, profit-sharing, bonus, incentiveincentive compensation (including any equity-based compensation), deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to the employees of the CompanyAA seconded to it, except for payments related to stay bonus, transaction completion bonus, severance payments other than as required by any such plan or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyApplicable Law;
(xiiivii) make any material increase change in the compensation of the employees of AA seconded to it, other than normal increases in annual salary to Persons who are not officers or directors in the ordinary course of business consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense of the Company;
(viii) terminate any employee of AA seconded to the Company, other than changes made except as a direct result of such employee’s (i) willful failure to perform the duties or responsibilities of his or her employment, (ii) engaging in accordance with normal compensation practices and consistent with past compensation practicesserious misconduct, or (iii) being convicted of or entering a plea of guilty to any crime;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvix) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvix) originatemake advertising, acquire, hold, sell, transfer, securitize marketing or hedge loans secured by real estate; provided that, similar types of expenditures other than in the ordinary course of business and in amounts consistent with past practice, the practices of the Company may originate loans secured by 1during the twelve-to-4 family residential real estate month period immediately preceding the date of this Agreement (and the Company will use commercially reasonable efforts to prevent any Fund from making such expenditures);
(xi) make any change in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf the charter or by-laws of the Company or the Subsidiary or issue, sell, transfer, pledge, dispose of or encumber any capital stock or other equity interests (or securities exchangeable, convertible or exercisable for capital stock or other equity interests);
(xii) modify the terms of any Indebtedness or other liability, other than modifications of short term debt in the ordinary course of business, or assume or guarantee the obligations of any other Person, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the ordinary course of business;
(xiii) sell, lease (as lessor), transfer or otherwise dispose of (including any loans secured transfers to any Affiliate of the Company), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, a material amount of the assets reflected on the consolidated balance sheet of the Company and the Subsidiary as of the Financial Statements Date or any assets acquired by real estate the Company or the Subsidiary after the Financial Statements Date, except for Permitted Encumbrances;
(xiv) cancel any debts owed to or claims held by the Company or the Subsidiary (including the settlement of any claims or litigation) that were material to the Company and the Subsidiary taken as a whole other than in the ordinary course of the business consistent with past practices;
(xv) pay or agree to pay any pension, retirement allowance or other employee benefit not required by any of the plans or programs described in Schedules 5.17(a) or 5.17(c) to any director, officer, employee, consultant or employee of AA seconded to the Company, whether past or present;
(xvi) enter into any new, or amend, terminate or renew any existing, employment, consulting, salary continuation, severance or termination agreement with any director, officer, employee or consultant or any employee of AA seconded to the Company;
(xvii) forgive any loans to any employee of AA seconded to the Company or any member of such employee’s Immediate Family, or any person controlled by such employee or his or her Immediate Family;
(xviii) enter into any new loans, leases or other agreements or transactions which, if entered into as of the date hereof, would be required to be listed on Schedule 5.28, or, except as and to the extent contemplated by Section 9.6 and Section 10.6, materially amend any such item listed on Schedule 5.28;
(xix) except as may be required to comply with Applicable Law, become obligated under any new Pension Plan, Welfare Plan or other employee benefit plan, which was not in existence on the date hereof, or amend any such plan in existence on the date hereof if such amendment would have the effect of materially enhancing any benefits thereunder; or
(xviixx) make (A) make, change or revoke any material change election in internal control over financial reporting, other than respect of Taxes; (B) prepare any change required by GAAP or any change made by Seller Tax Returns in a manner which is not consistent in all material respects with the past practice of the Company and the Subsidiary with respect to all the treatment of its Controlled Affiliates.
items on such Tax Returns; (cC) The file any material amendment to a Tax Return that will or may increase the Tax liability of the Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements thereforthe Subsidiary before or after the Closing; or (D) settle any claim or assessment in respect of Taxes, in full force each case, which would materially and effect through adversely affect the Company and the Subsidiary, taken as a whole, before or after the Closing Date.
Appears in 1 contract
Sources: Stock Purchase Agreement (Amr Corp)
Operations Prior to the Closing Date. During the period from the date hereof to the Closing Date, except as required by Law or as required by this Agreement, Seller shall:
(a) Except as set forth on Schedule 5.3(a), (i) operate and carry on the Business in the ordinary course of business in substantially the same manner as heretofore conducted, (ii) use commercially reasonable efforts to preserve intact its business organizations primarily related to the Business, keep available the services of executive officers and key employees of the Business and preserve its current business relationships with the customers of the Business, and (iii) use commercially reasonable efforts to maintain the condition of the personal property that constitutes Purchased Assets in all material respects, subject to reasonable wear and tear.
(b) Without limiting the provisions of Section 5.3(a), except as set forth on Schedule 7.4 or 5.3, as otherwise contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), between the date hereof and the Closing Date, Seller shall not, with respect to not do any of the Equity Interests, the Company or the Business, and Seller cause the Company not tofollowing:
(i) amend make any material change in the fundamental nature of the Business or its articles of incorporation or by-laws (or similar organizational documents)operations, except such changes as may be required to comply with any applicable Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure in relation to the Business or enter into any contract or commitment therefor in excess of $50,000; provided that250,000 individually or $1,000,000 in the aggregate, except in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companybusiness;
(v) (Aiii) enter into any Contract which would have been a Company Agreement if in effect on relation to the date hereof, Business for the purchase or lease (Bas lessor or lessee) enter into any Contract which would require the consent of a third party real property other than in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofOther Oklahoma Operations;
(viiv) sell, lease (as lessor), transfer or otherwise dispose of of, mortgage or pledge or impose any Lien (including any transfers from the Company to Seller or other than Permitted Liens) on any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, in the case than sales or other disposition of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than Inventory in the ordinary course of the Business consistent with past practice;
(viii) create, incur business and personal property sold or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement otherwise disposed of Financial Accounting Standards No. 13), other than in the ordinary course of businessbusiness which is excess, obsolete or is not material to the Business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in in, or adopt any profit-new, profit sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, severance, termination, welfare or other employee benefit plan Benefit Plan with respect to employees of the CompanyBusiness Employees, except for payments related to stay bonusother than as required by any such existing plan, transaction completion bonus, severance payments or other similar payments made on by any existing employment or prior to the Closing Date as a result of this Agreement collective bargaining agreement or the transactions contemplated herebyby applicable Law;
(xiiivi) make institute any material increase in the compensation of the employees of the Company, any Business Employee other than changes made in accordance with normal compensation practices and consistent with past compensation practices of Seller, or as required by any existing employment or collective bargaining agreement or by applicable Law;
(vii) enter into any Contract which would be included in the definition of Assigned Contracts or Partially Assigned Contract or breach or make any material modification to any existing Assigned Contract or Partially Assigned Contract, in each case other than any Contracts with, or any modifications which extend any Contract by, a term of less than one year, and which involve $2,000,000 or less with regard to the Business, and are entered into or modified in the ordinary course of business consistent with past practices;
(viii) waive or release any rights of material value relating to the Business and which would otherwise be a Purchased Asset;
(ix) terminate the employment of any Business Employee (except for terminations in the ordinary course of business and consistent with past practice) or offer employment or agree to offer employment to any person who would, by virtue of such offer, become a Business Employee other than hiring in the ordinary course of business to fill the positions listed on Schedule 5.3 or to replace employees whose employment terminates or is suspended after the date hereof;
(x) commence, settle or compromise any litigation, action or proceeding with respect to the Business, except for (A) except as required by applicable Requirements routine collection of Lawreceivables, prepare (B) proceedings to enforce this Agreement against Buyer or file Buyer Parent resulting from Buyer’s or Buyer Parent’s breach of this Agreement, (C) any Tax Return inconsistent with past practice orlitigation, on any such Tax Return, take any position, make any election, action or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods proceeding that would not have a material effect on the Purchased Assets or the Assumed Liabilities or Buyer’s future conduct of the Business, (D) settlements involving only monetary remedies that are Excluded Liabilities or any other remedies that would not have a material effect on the Purchased Assets or the Assumed Liabilities or Buyer’s future conduct of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date)Business, or (BE) settle any settlement of the Gulfstream Arbitration or otherwise compromise any claim related to Taxes, enter into Existing Claim involving only monetary remedies that are Excluded Liabilities or any closing agreement other remedies that would not have a material effect on the Purchased Assets or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, the Assumed Liabilities or request any ruling or similar guidance with respect to TaxesBuyer’s future conduct of the Business;
(xvxi) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, other than in the ordinary course of business consistent with past practice, reduce the Company may originate loans secured by 1-to-4 family residential real estate amount of insurance coverage with respect to the Business or fail to renew any material existing insurance policies covering the Business;
(xii) amend in an aggregate principal amount not to exceed $2,000,000 per month; provided further a manner that Seller shall not originate any loans secured by real estate on behalf adversely impacts the ability of the Company Business to conduct its business, terminate or transfer allow to lapse any loans secured by real estate material Permit that would be a Purchased Asset;
(xiii) fail to maintain Inventory of the CompanyBusiness in accordance with contractual requirements, and consistent with past practice; or
(xviixiv) make agree, whether in writing or otherwise, to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Operations Prior to the Closing Date. (a) Except During the Interim Period, except (v) as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company7.3(a), (iw) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except Agreement, (x) for any Contagion Event Measures, (y) with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed)) or (z) as required to comply with applicable Requirements of Law, Seller shall not, (with respect to the Equity Interests, Business and the Company) and the Company or shall use commercially reasonable efforts to (i) operate and carry on the BusinessBusiness in the Ordinary Course of Business in compliance with all Requirements of Law, (ii) maintain and preserve intact its business organization, franchise, Governmental Permits, current operations, personnel, customer and vendor relationships and other business relationships of the Company, and Seller cause goodwill, and (iii) manage the Working Capital of the Company (including the timing of the collection of accounts receivable and the payment of accounts payable) in the Ordinary Course of Business.
(b) In furtherance of, and without limiting the generality of, Section 7.3(a), except (v) as set forth in Schedule 7.3(b), (w) as expressly contemplated by this Agreement, (x) for any Contagion Event Measures, (y) with the prior written approval of Buyer (which approval, in the case of clauses (i), (ii), (iv), (v), (x), (xi), (xii) and (xiii) below, Buyer agrees shall not tobe unreasonably withheld, conditioned or delayed) or (z) as required to comply with applicable Requirements of Law, during the Interim Period, neither Seller (with respect to the Business and the Company) nor the Company shall:
(i) amend its articles sell, lease or otherwise transfer or dispose of incorporation any assets or byproperties of the Company (other than the sale of Inventory in the Ordinary Course of Business or the disposition of obsolete and fully-laws depreciated assets not used in the Business during the twelve (or similar organizational documents12) months preceding the date hereof);
(ii) issue, grant, sell terminate or encumber adversely modify or amend in any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for manner adverse to the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyCompany a Lease Agreement;
(iii) make any change loan to, advance to, investment in the Business or the operations capital contribution to any Person, including any of the Company outside the ordinary course of businessits stockholders, directors, officers or employees or any Affiliate thereof;
(iv) make increase the rates of wages, salaries, bonuses, or other cash compensation available to any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf employee of the Company with annual cash or transfer equity-based compensation equal to or greater than $100,000 prior to such increase, other than (A) annual, regularly scheduled increases in base compensation and target annual incentives for 2022 in the Ordinary Course of Business, (B) as required by the terms of any loans secured Plan, Collective Agreement, Employment Agreement or Contract in effect as of the date hereof, which has been made available to Buyer, or (C) pursuant to Requirements of Law;
(v) establish, adopt, amend or terminate any Plan, except renewals of existing Plans in the Ordinary Course of Business or as required to comply with Requirements of Law;
(vi) acquire by real estate to merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(vii) issue, deliver, pledge, redeem, reclassify, sell or otherwise dispose of any of the Purchased Stock or other Equity Securities of the Company;
(vviii) (A) enter into any Contract which would have been a Company Agreement if in effect on amend the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation Organizational Documents of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofCompany;
(viix) sell, lease (as lessor), transfer create or otherwise dispose incur any Encumbrance on any Purchased Stock or Equity Securities of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed Encumbrance (other than a Permitted Encumbrance) on any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in than granting any Encumbrance that will be released prior to the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practiceClosing;
(x) delay cancel, terminate, or accelerate payment of adversely modify any account payable or other liability of insurance policy covering the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceassets and properties without obtaining comparable replacement coverage;
(xi) except as expressly contemplated by Section 7.9commence, makesettle, or agree to makecompromise any Proceeding by or against the Company, any distribution or other disposition of assets (other than cash any settlement or release that contemplates only the payment of money without ongoing limits or restrictions on the conduct or operation of the Business and cash equivalentsresults in a customary, irrevocable release of the claims giving rise to such Proceeding (and all related claims) to Seller or any in favor of the Company and its Affiliates;
(xii) institute delay or postpone the payment of any material increase accounts payable when due, or accelerate the collection of any accounts receivable when due, in any profit-sharingeach case, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees outside the Ordinary Course of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyBusiness;
(xiii) make waive, release, or assign any material increase rights or claims in the compensation excess of the employees of the Company$25,000 under any Material Contract, in each case, other than changes made extensions granted by the Company for the payment of accounts receivable due and owing to the Company in accordance with normal compensation practices and consistent with past compensation practicesthe Ordinary Course of Business;
(Axiv) make any bonus or profit sharing distribution or similar payment of any kind or declare or pay any dividends (other than any dividends that would be paid in full out of available cash of the Company prior to the Closing), except as may be required by applicable Requirements the terms of Lawa Plan, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any electionCollective Agreement, or adopt any method Contract in effect as of the date hereof and that is inconsistent with positions taken, elections was made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income available to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to TaxesBuyer;
(xv) make remove any change in the accounting policies applied in the preparation auditor or director or terminate any officer or other senior employee of the financial statements contained in Schedule 5.4, unless such change is required Company (other than any terminations by GAAPthe Company for cause);
(xvi) originateestablish, acquireadopt, holdnegotiate, enter into or commit to enter into, amend or terminate any Collective Agreement or any other similar agreement with any Union, without having first notified, consulted with and obtained the consent of Buyer;
(xvii) fail to pay within the time prescribed by applicable law the proper amount of any Taxes due, including any installments of Taxes, or fail to file within the time prescribed by applicable Requirements of Law (taking into account any extension properly obtained in accordance with applicable Requirements of Law) any Tax Returns that are required to be filed;
(xviii) fail to withhold from each payment made by it the amount of all Taxes and other deductions required to be withheld therefrom and to pay the same to the proper Governmental Body within the time prescribed under any applicable Requirements of Law;
(xix) make, change or revoke any Tax election inconsistent with past practices or adopt or change any method of Tax accounting, settle or compromise any Liability with respect to Taxes, consent to any extension or waiver of the statutory limitation period applicable to any Taxes or Tax Returns, file any amended Tax Return or change any Tax accounting period;
(xx) declare, set aside or pay any non-cash dividend or make any non-cash distribution with respect to the Equity Securities of the Company or redeem, purchase, or otherwise acquire any Equity Securities;
(xxi) other than after providing Buyer written notice no less than two (2) Business Days in advance, make any change to the Company’s accounting methods, principles or practices, other than such changes as required by GAAP or Requirements of Law;
(xxii) sell, transfer, securitize license, sublicense or hedge loans secured by real estate; provided thatotherwise dispose of any material Owned Intellectual Property, or amend or modify in any material respect any existing Contract or rights with respect to any material Owned Intellectual Property or other Intellectual Property;
(xxiii) terminate or materially reduce the ordinary course relationship with any of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf Company’s top twenty (20) largest customers or vendors of the Company (based on total revenues received from such customers and amounts paid to such vendors) for the 12-month period ended December 31, 2021 (other than any such reduction with any such vendor for which the Company has identified and obtained from an alternative vendor or transfer supplier, on terms substantially similar to or better than those offered by such vendor, for like products and goods);
(xxiv) make or incur (or commit to make or incur) any loans secured capital expenditure in excess of the budgeted amount for the current fiscal year, unless such expenditure is paid in full by real estate the Company prior to the CompanyClosing; or
(xviixxv) make enter into any material change in internal control over financial reportingagreement, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22commitment, or suitable replacements therefor, in full force and effect through understanding (whether written or unwritten) to do any of the Closing Dateforegoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its commercially reasonable efforts to operate to, and shall use its reasonable efforts to cause the Company to Companies to, operate and carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall use its commercially reasonable efforts, and shall cause the Company Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts efforts, consistent with good business practice practice, to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth in Schedule 7.4, except as contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with not (in respect to the Equity Interests, the Company or of the Business), and Seller cause shall not permit the Company not Companies (in respect of the Business), to:
(i) amend its articles make any material change in the Business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell purchase or encumber otherwise acquire any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities assets or make any other changes capital expenditures constituting Assets, in each case that are material, individually or in the equity capital structure of the Company;
(iii) make any change in aggregate, to the Business or the operations as a whole (other than (A) purchases of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, inventory in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions capital expenditures contemplated by this Agreement or the 2005 Seller Capital Budget, (C) modify, amend, terminate or grant any consent or waiver capital expenditures required under any Company Real Estate Agreement or any Contract Lease Agreement for capital improvements that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to are not controlled exclusively by Seller or any of its Affiliates)the Companies, or mortgage or pledge, or impose or suffer to be imposed (D) capital expenditures required by any Encumbrance on, any of Governmental Body and (E) such capital expenditures not covered by clauses (A) the Equity Interests or through (BD) the assets or properties of the Company, other than, above that do not exceed $1,000,000 in the case of this clause (Baggregate), Permitted Encumbrances;
(viiiii) cancel exercise any debts owed option to or claims held by the Company (including the settlement of any claims or litigation) other than extend a lease listed in the ordinary course of the Business consistent with past practiceExhibit F;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money with respect to the Business (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of its Affiliates in the ordinary course of business) or grant any Encumbrance with respect to the Assets, in each case other than Permitted Encumbrances, Permitted Real Property Exceptions and Encumbrances imposed by the Credit Agreement;
(ixv) accelerate or delay collection of transfer any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of material assets (other than cash in excess of Register and cash equivalentsStore Safe Cash prior to the Effective Time) to Seller any Affiliate other than a Company or any of its AffiliatesSeller;
(xiivi) institute any material increase in the benefits available in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the CompanyBusiness, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made than as expressly required by the terms of any such plan as in effect on or prior to the Closing Date as a result date of this Agreement or the transactions contemplated herebyRequirements of Law;
(xiiivii) (A) grant to any Key Employee any increase in compensation or other benefits (including any bonus, severance or retention agreements) or grant to any employee of the Business any material increase in compensation or other benefits (including any bonus, severance or retention agreements) except as may be required under existing agreements set forth in Schedule 5.5 or in the ordinary course of business consistent with past practice or (B) designate any employee of the Business as a participant in the Severance Pay Plan pursuant to Section 2.A(ii) of the Severance Pay Plan;
(viii) enter into or amend any collective bargaining agreement;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, any business or any corporation, partnership, association or other business organization or division thereof;
(x) sell or otherwise dispose of any assets that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xi) materially adversely modify or amend any Business Agreement;
(xii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting methods or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvixiii) originateintentionally waive in writing any right of any material value of or with respect to the Business;
(xiv) enter into any material agreement, acquirecontract or arrangement with any of its Affiliates relating to the Business that is being assigned to or assumed by Buyer under this Agreement;
(xv) create any new gift certificate, holdgift card, sellmerchandise voucher, transfercoupon or refund program for the Business or amend in any material respect the Seller Gift Programs, securitize or hedge loans secured by real estate; provided thatin each case, other than in the ordinary course of business consistent with past practice;
(xvi) create any new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xvii) prior to July 5, 2005 (A) place any orders for spring 2006 merchandise bearing the Company may originate loans secured private label brands of Seller and other brands owned by 1third parties licensed to Seller (“Private Brand Merchandise”) or (B) place any fill-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyorders for Private Brand Merchandise for delivery after November 15, 2005; or
(xviixviii) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Saks Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with From the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayeddate hereof until the Closing Date, Seller shall operate and carry on the business of the Owned Stations, and use its reasonable efforts to operate and shall use its reasonable best efforts to cause the Company Purchased Stations to carry on the Business be operated and carried on, only in the ordinary course and substantially as presently currently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingStations.
(b) In addition, and without limiting Notwithstanding Section 7.4(a4.4(a), except as expressly contemplated by this Agreement Agreement, except as set forth in Schedule 4.4(b) or except with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles make any material change in the business or the operations of incorporation or by-laws (or similar organizational documents)the Stations;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure relating to the Stations, or enter into any contract or commitment therefor therefor, in excess of $50,000; provided that, 50,000 in the ordinary course of business consistent with past practiceaggregate, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not other than capital expenditures required pursuant to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySection 4.4(c)(v);
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viiii) sell, lease (as lessor)lease, transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Purchased Assets, other than (A) the Equity Interests minor amounts of personal property having an aggregate value of less than $50,000 sold or (B) the assets or properties otherwise disposed of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent business of the Stations which would not reasonably be expected to have a material adverse effect on the business or operations of the Stations, (B) minor amounts of personal property which are replaced due to defect or obsolescence with past practicepersonal property of substantially the same nature and of equal or greater quality in the ordinary course of the business of the Stations and (C) Permitted Encumbrances;
(viiiiv) create, incur or assume, or agree to create, incur or assume, enter into any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined agreement providing for annual payments by the Stations in Statement excess of Financial Accounting Standards No. 13)$25,000, other than agreements entered into in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material general increase in the compensation of the employees of any Station except as and to the Companyextent reflected in the 1996 budgets of the Stations previously made available to Buyer or as required under any existing employment agreement;
(vi) grant any bonus to any executive employee of any Station except as and to the extent reflected in the 1996 budgets of the Stations previously made available to Buyer or as required by any existing employment agreement or bonus plan; or
(vii) make any material changes in the hours of broadcast of any Station or in the format or programming policies of any Station.
(c) From the date hereof until the Closing Date, other than changes made Seller shall:
(i) operate the Owned Stations, and use its reasonable best efforts to cause the Purchased Stations to be operated, in all material respects in accordance with normal compensation practices the FCC's rules and consistent regulations and the FCC Authorizations and shall not fail to prosecute with past compensation practicesdue diligence any pending application to the FCC, including, without limitation, the renewal applications relating to the FCC Authorizations for the Owned Stations, and shall not cause or permit by any act, or failure to act, any of the FCC Authorizations to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceeding for the suspension, revocation or material adverse modification of any of the FCC Authorizations;
(Aii) except as required by applicable Requirements of Lawmaintain insurance policies on the Owned Stations and the related Purchased Assets, prepare or file any Tax Return inconsistent with past practice orand use its reasonable best efforts to cause insurance policies to be maintained on the Purchased Stations and the related Purchased Assets, on any such Tax Returnterms and conditions and with insurers substantially identical to or better than those in effect immediately prior to the date hereof;
(iii) if the broadcast transmissions of the Stations from their main broadcast antennae at authorized power are interrupted or impaired, take any positionuse its reasonable best efforts to restore transmissions at full authorized power as soon as reasonably possible;
(iv) protect and defend the FCC Authorizations, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute broadcast coverage area and signal integrity relating to Taxeseach of the Owned Stations and use its reasonable best efforts to cause the protection and defense of the FCC Authorizations, broadcast coverage area and signal integrity relating to the Purchased Stations;
(v) make all capital expenditures contemplated by the capital budget of each of the Owned Stations;
(vi) spend in the aggregate substantially all of the amounts for promotion and expense contemplated in the 1996 budget of the Stations previously made available to Buyer and in the 1997 budget to be prepared by Seller;
(vii) not modify, waive or request amend any ruling provision of or similar guidance right under the Exchange Agreement without the prior written consent of Buyer;
(viii) use its reasonable best efforts to consummate the Exchange Transaction and proceed diligently to exercise its rights with respect to Taxes;the Purchased Stations; and
(xvix) make any change in keep its books and accounts, records and files relating to the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, Stations in the ordinary course of business and in a manner consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Sellers shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Sellers shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its their reasonable best efforts consistent with good business practice to maintain the business organization of the Company Sellers intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSellers.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller Sellers shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of Sellers with respect to the Company outside the ordinary course of businessBusiness;
(ivii) make any capital expenditure with respect to the Business or enter into any contract or commitment therefor in excess of $50,000; provided thattherefor, other than capital expenditures or contracts, agreements or understandings for capital expenditures referred to in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate applicable budget contained in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySchedule 5.23;
(viii) (A) except as contemplated by Schedule 5.23, enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.17 if in effect on the date hereof, hereof or enter into any contract which cannot be assigned to Buyer or a permitted assignee of Buyer under Section 13.5;
(Biv) enter into any Contract which would require contract for the consent purchase of real property to be used in the Business or for the sale of any Owned Real Property or exercise any option to purchase real property listed in Schedule 5.10(A) or any option to extend a third party lease listed in connection with the consummation of the transactions contemplated by this Agreement or Schedule 5.10(B);
(Cv) modify, amend, terminate or grant fail to renew any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofContracts for insurance;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company by a Seller to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by Sellers with respect to the Company Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money in respect of Sellers or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9allow the levels of raw materials, supplies, work-in-process, finished goods or other materials included in the inventory of the Business to vary in any material respect from the levels customarily maintained in the Business;
(xii) make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to a Seller or any of its AffiliatesAffiliates (other than cash realized upon collection of receivables generated in the ordinary course of the Business);
(xiixiii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebySellers;
(xiiixiv) make any material increase change in the compensation of the employees of the CompanySellers, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Axv) except as required communicate with any employee regarding any compensation or benefits to be provided by applicable Requirements Buyer or any of Law, its Affiliates after the Closing without the prior consent of Buyer;
(xvi) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to Section 8.2(a) or accelerating deductions to periods ending on or before the Closing Datefor which Sellers are liable pursuant to Section 8.2(a), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;); or
(xvxvii) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates5.4(A).
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Prior to the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedClosing, Seller shall cause the Acquired Companies to use its commercially reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement, except as provided in this Agreement. Consistent with the foregoing, Seller shall cause the Company Acquired Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain preserve reasonable commercial relationships in ordinary course of business consistent with past practice with the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcquired Companies.
(b) In additionExcept as set forth on Schedule 7.4, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed, it being understood that if Buyer does not respond to any request for consent within two (2) Business Days of the date of such request, Buyer’s consent shall be deemed to have been granted), Seller shall not, with respect to not permit the Equity Interests, the Company or the Business, and Seller cause the Company not Acquired Companies to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations its operations, except such changes as may be required to comply with any applicable Requirements of the Company outside the ordinary course of businessLaw;
(ivii) make any capital expenditure or enter into any contract or commitment Contract therefor in excess of $50,000; provided thatthe amounts set forth in the budget for capital expenditures of the Acquired Companies, set forth on Schedule 7.4(b)(ii);
(iii) enter into any Contract for the purchase of real property or exercise or fail to exercise any option to extend a lease listed in Schedule 5.10(b) for more than twelve (12) months;
(iv) enter into or modify in any respect that materially and adversely affects any Acquired Company, or terminate, any Contracts that would constitute a Material Contract, other than customer Contracts in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companybusiness;
(v) (A) enter into or modify in any Contract which respect any Contracts with any Affiliates of the Acquired Companies that would have been a Company Agreement if in effect be binding on the date hereofAcquired Companies after the Closing, (B) enter into any Contract which would require other than Contracts that are immediately cancelable by the consent of a third Acquired Companies without liability or need for advance notice to the other party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofthereto;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness (other than money borrowed or enter intoadvances from any of its Affiliates);
(vii) make, as lesseeor agree to make, any capitalized lease obligations payment or distribution of assets (other than cash) to Seller or any of its Affiliates (other than the Acquired Companies);
(viii) institute any material increase in any Company Plan with respect to its employees, other than as defined required by any such plan or Requirements of Law;
(ix) except to the extent required by applicable Requirements of Law, grant any material increase in Statement salary or bonus or otherwise materially increase the cash compensation or benefits payable or provided to any director, officer, employee of Financial Accounting Standards No. 13)the Acquired Companies;
(x) sell, assign or transfer any of the tangible assets of the Acquired Companies, other than in the ordinary course of business;
(ix) accelerate or delay collection , and in no event having an aggregate value in excess of $100,000 in any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or week beginning on the date involving more than $25,000 when of this Agreement, except for any such liability would have been paid in the ordinary course of the Business consistent with past practicesales, assignments or transfers to an Acquired Company;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Balance Sheet or its Tax accounting policies, unless such change is required by GAAPGAAP or applicable Requirements of Law;
(xii) issue any additional Membership Interests, partnership or equity interests in the Acquired Companies (or securities exchangeable, convertible or exercisable for partnership or equity interests);
(xiii) make any amendment to its certificate of incorporation or by-laws (or equivalent organizational documents) or create any subsidiary;
(xiv) declare or pay any dividends or distributions or repurchase or redeem any shares of capital stock or other equity interests;
(xv) issue or sell any capital stock or other equity interests or options, warrants, calls, subscriptions or other rights to purchase any capital stock or other equity interests of the Acquired Companies or split, combine or subdivide the capital stock or other equity interests of the Acquired Companies;
(xvi) originatemake any loans, acquireadvances or capital contributions to or investments in any Person;
(xvii) materially modify its cash management practices (including with respect to maintenance of working capital balances, holdcollection of accounts and notes receivable and payment of accounts payable;
(xviii) settle any material Proceeding (including any civil, sellcriminal, transferadministrative, securitize investigative or hedge loans secured by real estate; provided thatappellate proceeding) relating to or affecting the Acquired Companies, other than with respect to Taxes, which are addressed in sub clause (xxi) of this Section 7.4(b);
(xix) engage in any promotional sales or discount or other activity with customers that has or would reasonably be expected to have the effect of materially accelerating to pre-Closing periods sales that would otherwise be expected to occur in post-Closing periods, other than in the ordinary course of business consistent with past practicepractice (including with respect to frequency and magnitude);
(xx) discontinue any line of business or dissolve or wind up any Acquired Company;
(xxi) change its fiscal year or make or change any election, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to exceed $2,000,000 per month; provided further that Seller shall not originate claim a refund of Taxes, consent to any loans secured by real estate on behalf extension or waiver of the Company limitation period applicable to any Tax claim, or transfer take any loans secured by real estate other similar action relating to the Companyfiling of any Tax Return or the payment of any material Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of materially increasing the Tax liability of any Acquired Company for any period ending after the Closing Date or materially decreasing any Tax attribute of any Acquired Company existing on the Closing Date; or
(xviixxii) make agree to take any material change of the actions described in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatessub clauses (i) through (xxi) above.
(c) The At the Closing, Seller shall deliver to Buyer copies of all minute books and stock and other ownership records of each Acquired Company in its possession after reasonable investigation. Seller shall keep all insurance policies set forth on Schedule 5.22use commercially reasonable efforts to deliver, or suitable replacements therefor, in full force and effect through at the Closing Dateor promptly thereafter, (i) a resignation letter from each member of the board of directors and each Manager, if any, of each of the Acquired Companies and (ii) a written release of all guarantees and written releases of any Lien (including executed UCC-3 termination statements) executed by the appropriate lenders or agent bank under the Credit Agreement, the Revolving Credit Agreement and the Indenture (each as defined in Schedule 5.3) (collectively, the “SVM Lender Releases”).
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with The Selling Shareholders shall cause the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts Companies to operate and shall use its reasonable efforts to cause the Company to carry on the Business only their business in the ordinary course Ordinary Course of Business and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with Without limiting the foregoing, Seller the Selling Shareholders shall cause the Company Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, Administrative Authorities, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiaries.
(b) In addition, and without Without limiting Section 7.4(a8.4(a), except as expressly set forth in Schedule 8.4 and except as contemplated by this Agreement the Restructuring or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller the Selling Shareholders shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company Companies not to:
(i) amend its articles transfer any of incorporation the Shares to any Person or by-laws (create or similar organizational documents)suffer to exist any Encumbrance upon the Shares;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other material change in their business or their operations, except such changes in the equity capital structure as may be required to comply with any applicable Requirements of the CompanyLaw;
(iii) make any change capital expenditures (or enter into any Contracts in respect of capital expenditures) in excess of $50,000 or make any capital expenditures that will materially increase the Business or property taxes paid by the operations of Subsidiaries other than in accordance with the Company outside the ordinary course of businessApproved Annual Budget;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess Contract for the purchase of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyproperty;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereoffor any acquisitions (by merger, (B) enter into any Contract which would require the consent consolidation, or acquisition of a third party in connection with the consummation of the transactions contemplated by this Agreement stock or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement assets or any Contract that would have been a Company Agreement if it were in effect on the date hereofother business combination) of any Person or business or any division thereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Companytheir assets, other thanthan inventory and personal property, in an amount not to exceed $25,000 in the case aggregate, sold or otherwise disposed of this clause (B), in the Ordinary Course of Business and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company them (including the settlement of any claims or litigation) other than in the ordinary course Ordinary Course of the Business consistent or in accordance with past practiceSection 8.5;
(viii) create, incur incur, assume or assumeguarantee, or agree to create, incur incur, assume or assume, guarantee any Indebtedness indebtedness for borrowed money or enter into any "keep well" or other agreement to maintain the financial condition of another Person into any arrangement having the economic effect of any of the foregoing (including entering into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course Ordinary Course of businessBusiness;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any dividends or distribution or other disposition of assets (other than including cash and cash equivalents) to Seller the Selling Shareholders or any of its Affiliatestheir Affiliates (other than payments made in accordance with the MSA in the Ordinary Course of Business);
(x) adopt, modify or terminate any Company Plan, or institute any increase in any benefit provided under any Company Plan other than as required by any such plan or Requirements of Law; increase the compensation of any Company Employee, other than increases required by any Company Plan or Requirements of Law; grant any equity or equity-based awards to any Company Employee; hire, or make any commitment to hire, any additional employees or independent contractors for the benefit of any of the Companies other than with respect to personnel required to fulfill functions (A) as a result of the pending termination of services currently provided to the Subsidiaries by CMS Energy Corporation or (B) at the new control center being built by the Subsidiaries in Grand Rapids, Michigan;
(xi) enter into, amend, modify, grant a waiver in respect of, cancel or consent to the termination of any Material Contract (or any Contract that would be a Material Contract if in effect on the date of this Agreement) other than any amendment, modification or waiver which is not material to such Contract and is otherwise in the Ordinary Course of Business;
(xii) institute enter into or adversely amend, modify or waive any rights under, in each case, in any material increase in respect, any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare Contract (or other employee benefit plan series of related Contracts) with respect to employees the Selling Shareholders or any Affiliate of the CompanySelling Shareholders (other than the Companies) other than the entry into or amendment, except for payments related to stay bonusmodification, transaction completion bonus, severance payments or other similar payments made waiver of any such Contracts on or prior an arms' length basis which are not in the aggregate materially adverse to the Closing Date as a result business of this Agreement or the transactions contemplated herebySubsidiaries;
(xiii) cause any of the Companies to engage in any transactions outside the Ordinary Course of Business between the date hereof and through the Closing that would materially increase the Taxes for which Buyer is responsible under this Agreement, reduce the tax attributes available to Buyer or that could reasonably be expected to have a material adverse effect on the Taxes of any of the Companies after the date hereof, other than transactions expressly contemplated or permitted by this Agreement or the Schedules hereto;
(xiv) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP, applicable regulations of the FERC or prior orders of the FERC applicable to METC with effect after the date hereof;
(xv) make any change in their Organizational Documents or purchase, redeem or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock);
(xvi) originate, acquire, hold, sell, transfer, securitize take any action that may cause a significant impairment or hedge loans secured by real estate; provided that, write down in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate assets or increase in an aggregate principal amount not Liabilities that is reasonably likely to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate cause METC's rate base to the Company; orbe decreased;
(xvii) make or change any material Tax election, change in internal control over financial reportingan annual accounting period, other than adopt or change any change required by GAAP or any change made by Seller accounting method with respect to all Taxes, file any amended Tax Return with respect to any material Taxes, enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to such applicable Company, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of its Controlled Affiliates.Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any material Tax;
(cxviii) The Company shall keep all insurance policies set forth on Schedule 5.22, take any action that is intended or suitable replacements therefor, is reasonably likely to result in full force and effect through any of the Closing Dateconditions to consummation of the transactions contemplated by this agreement not being satisfied; or
(xix) agree to enter into any Contract or otherwise make any commitment to do any of the foregoing in this Section 8.4.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Until the written approval of BuyerClosing, which Buyer agrees the Company shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to shall (i) keep and maintain the material Company's assets of the Company in good operating condition and repair and shall repair, (ii) use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with it and (iii) continuously maintain insurance coverage substantially equivalent to that presently maintained by the Company. In connection therewithThe Sellers shall use all reasonable efforts, Seller shall notconsistent with past practices, to promote the Company's business and to maintain the reputation associated with the Company's business, and shall not permit the Company totake or omit to take any action which causes, with respect or which is likely to cause, any employee deterioration of the Company, (i) transfer such employee to Seller 's present business or an Affiliate of Seller, (ii) offer such employee employment by Seller relationships with suppliers or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingcustomers.
(b) In addition, and without limiting Section 7.4(aNotwithstanding SECTION 5.3(A), except as expressly contemplated by this Agreement Agreement, or except with the express written approval of the Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller the Company shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into or modify any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement required to be set forth on SCHEDULE 4.28, if in effect on the date hereof, (B) hereof or enter into any Contract contract which would require cannot be assigned to the consent of Buyer or a third party in connection with the consummation permitted assignee of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver Buyer under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSECTION 8.3;
(viii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to any Seller or any of its or their Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance (except Permitted Encumbrances) on, any of (A) the Equity Interests or (B) the assets or properties of the Company's Assets, other than, in the case than inventory and minor amounts of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to personal property sold or claims held by the Company (including the settlement otherwise disposed of any claims or litigation) other than in the ordinary course of the Business business consistent with past practicepractices;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixiii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business, consistent with past practicepractices;
(xiv) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practicepractices;
(xiv) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentsand/or life insurance to the extent permitted by the proviso to this SECTION 5.3) to any Seller or any of its or their Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiivi) make any material increase change in the compensation of the employees of the Companyits employees, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Avii) except as required by applicable Requirements allow its levels of Lawinventory to vary in any material respect from the levels customarily maintained;
(viii) permit to lapse any of its rights to the Intangible Property listed on SCHEDULE 4.19;
(ix) issue, prepare sell or file authorize for issuance or sale any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, securities or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance commitment with respect to Taxesthe foregoing;
(xvx) make redeem, purchase or otherwise acquire, directly or indirectly, any change in the accounting policies applied in the preparation shares of the financial statements contained in Schedule 5.4its capital stock or any option, unless warrant or other right to purchase or acquire any such change is required by GAAPshares;
(xvixi) originatedeclare or pay any dividend or other distribution (whether in cash, acquirestock or other property) with respect to its capital stock;
(xii) create, holdincur or assume any liability or indebtedness for borrowed money, sell, transfer, securitize or hedge loans secured by real estate; provided that, except in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate practices but in no event in an aggregate principal amount exceeding $20,000, except with respect to the Company's plans and commitments for the plant expansion in the amount not to exceed $2,000,000 per month; provided further that Seller shall not originate 1.3 million dollars.
(xiii) make or commit to make any loans secured capital expenditures in excess of $20,000 in the aggregate;
(xiv) cancel or waive any material debts, claims or rights or write off the value of any inventory or accounts receivable or increase the reserve for uncollectible receivables or obsolete, damaged or otherwise unsalable inventory, except as required by real estate generally accepted accounting principles or by law;
(xv) make any loans, advances or capital contributions to any Person, except routine advances to employees in the ordinary course of their business in non-material amounts or enter into any termination or severance arrangement with any employee or consultant;
(xvi) take any action which could reasonably be expected to have a material adverse affect on behalf the business, assets, operations or prospects of the Company or transfer any loans secured by real estate to the Company; orPurchased Assets;
(xvii) make apply any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.assets to the direct or indirect payment, prepayment, discharge, satisfaction or reduction of any amount payable, directly or indirectly, to or for the benefit of any Affiliate of any Seller or the Company (except for salary and benefits as currently in effect and except in accordance with existing agreements and arrangements which have been disclosed to the other parties hereto in writing);
(cxviii) The guaranty any obligation of any Person or enter into or modify any arrangement with any Affiliate of any Seller or the Company;
(xix) agree, whether in writing or otherwise, to do any of the foregoing;
(xx) take any action that could cause the representations and warranties of the Company shall keep all insurance policies or the Sellers set forth on Schedule 5.22herein not to be true and correct at and as of the Closing Date as if made at as of each such time; PROVIDED, HOWEVER, that nothing herein shall prohibit the Company from (i) distributing its earnings (in the form of available cash and/or life insurance policies) or treating any such distributions as salary or bonus payments if and to the extent that such distributions could not reasonably be expected to result in a reduction of the Closing Date Net Worth below $3,446,000 pursuant to SECTION 2.4 hereof, or suitable replacements therefor, in full force and effect through (ii) continuing with the Closing DateCompany plans for the plant expansion.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Smit▇ & ▇ephew shall cause the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts Company and S&N DonJoy Mexico to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and of business substantially as presently operatedoperated and consistent with past practice. Consistent with the foregoing, Seller Smit▇ & ▇ephew shall cause the Company to keep and maintain the material assets each of the Company in good operating condition and repair and shall S&N DonJoy Mexico to use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingit.
(b) In addition, and without Without limiting Section 7.4(a), except as set forth on Schedule 7.4, except as expressly contemplated by this Agreement or except with the express written approval of Buyer Investor (which Buyer Investor agrees shall not be unreasonably withheld or delayed), Seller Smit▇ & ▇ephew shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toand S&N DonJoy Mexico to not:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside the ordinary course of businessor S&N DonJoy Mexico;
(ivii) make any capital expenditure or enter into any contract for the purchase of real property or commitment therefor exercise any option to extend a lease listed in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySchedule 5.9(b);
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiii) create, incur incur, assume or assumeguarantee, or agree to create, incur incur, assume or assumeguarantee, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed from or advances from Smit▇ & ▇ephew or any of its Affiliates in the ordinary course of business);
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Companyits employees, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to as provided in the Closing Date as a result of this Agreement or the transactions contemplated herebyRetention Agreements;
(xiiiv) make any material increase change in the compensation of the employees of the Companyits employees, other than changes made in accordance with normal compensation practices and consistent with past compensation practices, except as provided in the Retention Agreements;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviivi) make any material change in internal control over financial reportingaccounting policies from the Agreed Accounting Principles;
(vii) sell, lease to others or otherwise dispose of any of its assets (except for sales in the ordinary course of business);
(viii) change or amend the Company's Certificate of Formation or operating agreement, except for the Amended and Restated Operating Agreement, or S&N DonJoy Mexico's charter or other than formative documents or by-laws;
(ix) issue or sell any change required of its capital stock or other securities, acquire directly or indirectly, by GAAP redemption or otherwise, any change made such capital stock, reclassify or split-up any such capital stock or grant or enter into any options, warrants, calls or commitments of any kind with respect thereto;
(x) fail to use reasonable efforts to keep the policies of fire and extended coverage and casualty, liability and other forms of insurance coverage maintained by Seller Smit▇ & ▇ephew or its Affiliates with respect to all the Company and S&N DonJoy Mexico as of its Controlled Affiliates.
(c) The Company shall keep all the date hereof or comparable insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date;
(xi) acquire any capital stock or other equity securities of any corporation or acquire any equity or ownership interest in any business;
(xii) fail to use commercially reasonable efforts to maintain the condition of all material Business Assets;
(xiii) make any Tax election, change any Tax accounting method or file any Tax Returns in a manner that is inconsistent with past practice; and
(xiv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Each of the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller Sellers shall use its reasonable efforts to operate and shall use its reasonable best efforts to cause the Company Companies and the Subsidiaries to operate and carry on the Strategies Business only and the Services Business in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller the Sellers shall cause the Company to keep and maintain the material assets each of the Company in good operating condition Companies and repair and shall the Subsidiaries to use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact preserve its work force as presently constituted, and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, Companies and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiaries.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as set forth on Schedule 7.4, as expressly contemplated by provided in this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity InterestsBuyer, the Company or the Business, and Seller Sellers shall cause the Company Companies and the Subsidiaries not to:
(i) amend its articles make any material change in Strategies Business, the Services Business or the operations of incorporation or by-laws (or similar organizational documents)such Businesses, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes capital expenditures or enter into any contracts or commitments therefor that, in the equity capital structure aggregate, involve payment in excess of the Company$500,000;
(iii) make enter into any change contract for the purchase of real property, enter into any lease of real property, exercise any option to extend a lease listed in the Business Schedule 5.9 or the operations enter into any lease for tangible personal property which provides for annual rental payments of the Company outside the ordinary course of business$25,000 or more;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course money borrowed or advances from any of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected its Affiliates in the ordinary course of the Business consistent with past practiceBusiness);
(xv) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution (whether by dividend, redemption or other disposition otherwise) of assets (other than cash and cash equivalentscash) to Seller FDC, FFMC or any of its their Affiliates;
(xiivi) institute any material increase in (x) change any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees its employees, other than as required by any such plan or Requirements of Law or (y) make any loan or advance to or enter into any non-arm's length transaction with any officer, director, stockholder or Affiliate of the Company, Companies or the Subsidiaries (except for payments related to stay bonus, transaction completion bonus, severance payments or other similar ordinary travel and business expense payments made on or prior to in the Closing Date as a result of this Agreement or the transactions contemplated herebyordinary course);
(xiiivii) make any material increase in the compensation of the employees of the Companyany employee, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvviii) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAPCut-Off Date Financial Statements;
(xviix) originatemake any change in the charter or by-laws of either Company or any Subsidiary;
(x) relinquish any material contract or contract right, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, except in the ordinary course course, or compromise any account receivable that was reflected in the Cut-Off Date Balance Sheet;
(xi) sell, assign, transfer or bulk reinsure any of business consistent with past practiceits assets (tangible or intangible), except in the Company may originate loans secured by 1-to-4 family residential real estate ordinary course;
(xii) enter into any contract which, if entered into prior to the date hereof, would have been required to be set forth in an aggregate principal amount not Schedule 5.14 pursuant to exceed $2,000,000 per month; provided further that Seller shall not originate clauses (i), (ii) and (iv) through (xi) of Section 5.14;
(xiii) take any loans secured by real estate on behalf action which would cause a failure of the Company or transfer any loans secured by real estate to the Companyconditions contained in Article IX; or
(xviixiv) make enter into any material change commitment (contingent or otherwise) to do any of the foregoing. Buyer's right to consent to or withhold consent to any of the above-described actions of the Companies and of the Subsidiaries does not create any duty of Buyer to the Companies or the Subsidiaries, and Buyer shall have no liability to any Company, Subsidiary or Seller Group Member in internal control over financial reporting, other than connection with any change required action (including the failure or refusal to consent to any proposed action) taken by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBuyer under this Section 7.4(b).
(c) The Company shall keep all insurance policies set forth on Schedule 5.22Sellers agree promptly to notify Buyer upon receiving any notice that any customer with more than 1,000 covered employees is canceling, terminating or suitable replacements therefor, in full force and effect through electing not to renew its relationship with the Closing DateCompanies or the Subsidiaries.
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthcare Compare Corp/De/)
Operations Prior to the Closing Date. During the period from the Effective Date until the Closing, the Seller and the Buyer, as applicable, agree to perform the covenants set forth below.
(a) Except as set forth otherwise agreed to in Schedule 7.4 or as contemplated writing by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, the Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to shall:
(i) carry on the Business only in the ordinary course and substantially as presently operated. Consistent consistent with the foregoing, Seller shall cause the Company to past practices;
(ii) keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair condition (ordinary wear and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or tear excepted);
(iii) otherwise attempt except as they may terminate in accordance with their respective terms (or by reason of a default committed by one or more of the other parties thereto), keep in full force and effect, and not cause a default of any of its obligations under, any Assumed Contracts and keep in full force and effect the insurance coverage in effect on the date hereof (unless a replacement policy with substantially equivalent coverage is obtained); and
(iv) duly comply with all laws applicable to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with conduct of the Company after the ClosingBusiness.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except Except with the express prior written approval consent of Buyer (the Buyer, which Buyer agrees consent shall not be unreasonably withheld withheld, and as otherwise required or delayed)permitted by this Agreement, the Seller shall notnot directly or indirectly, with respect to do any of the Equity Interests, the Company or the Business, and Seller cause the Company not tofollowing:
(i) amend make any material change in the general nature of the Business, including but not limited to, making any material changes to its articles class schedules. The Seller will not offer any sales outside of incorporation or by-laws (or similar organizational documents)the ordinary discounts currently offered;
(ii) issuesell, grantlease (as lessor), sell or encumber any shares of its capital stock or other securitiestransfer, surrender, abandon, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right otherwise dispose of any kind, fixed or contingent, that directly or indirectly calls for of the acquisition, issuance, sale, pledge or Purchased Assets other disposition of any shares of its capital stock or other securities or make any other changes than in the equity capital structure ordinary course of the Companybusiness consistent with past practices;
(iii) grant or make any change in the Business mortgage or the operations pledge or subject any of the Company outside the ordinary course of businessPurchased Assets to any Lien (other than Permitted Encumbrances);
(iv) make make, or agree to make, any capital expenditure or enter into any contract or commitment therefor in excess distribution of $50,000; provided that, the assets of the Business other than distributions of cash generated by the ordinary operations of the Business to the Seller and/or the Seller’s owners in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into take any Contract which action that would reasonably be expected to have been a Company Agreement if in effect Material Adverse Effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofBusiness;
(vi) sell, lease (as lessor), transfer Enter into any new fulfillment agreement or otherwise dispose alter the existing fulfillment agreement with [***] and [***] without the express written approval of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;Buyer; or
(vii) cancel agree, whether in writing or otherwise, to do any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesforegoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Innovative Food Holdings Inc)
Operations Prior to the Closing Date. (a) Except (x) as set forth in Schedule 7.4 Section 8.4 of the Disclosure Schedules or as contemplated by this Agreement or except (y) with the written approval of Buyer, Partner (which Buyer Partner agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller ▇▇▇▇▇▇▇ shall use and shall cause the JV Entity and its reasonable efforts subsidiaries to (i) operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with operated immediately prior to the foregoingdate of this Agreement and (ii) use its commercially reasonable efforts to preserve intact, Seller shall cause the Company to assets, goodwill and business organization, keep and maintain available the material assets services of the Company in good operating condition Business Employees, and repair and shall use its reasonable best efforts consistent with good to preserve the present business practice to maintain the business organization relationships of the Company intact and preserve the goodwill of the employeesBusiness including relationships with suppliers, brokerscontractors, lenders licensors, customers, distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a8.4(a), except (x) as expressly set forth in Section 8.4 of the Disclosure Schedule, (y) as contemplated by this Agreement or except (z) with the express written approval of Buyer Partner (which Buyer Partner agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller ▇▇▇▇▇▇▇ shall notnot and shall cause the JV Entity and its subsidiaries not to (in each case, with in respect to the Equity Interests, the Company or of the Business, and Seller cause the Company not to:):
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations Transferred Assets, except such changes as may be required to comply with any applicable Requirements of the Company outside the ordinary course of businessLaw;
(ivii) purchase or otherwise acquire any assets or make any capital expenditure expenditures constituting Transferred Assets, in each case that are material, individually or enter into any contract or commitment therefor in excess of $50,000; provided thatthe aggregate, to the Business as a whole (other than (A) in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests practice or (B) the assets or properties of the Company, other than, in the case of this clause (Bas required by any Governmental Body), Permitted Encumbrances;
(viiiii) cancel grant to any debts owed to Business Employee any material increase in any compensation or claims held by benefits (excluding any arrangements that do not involve payments extending past the Company (including the settlement of any claims or litigation) Closing Date), other than changes made in the ordinary course of the Business business consistent with past practicepractice or required pursuant to existing Contracts or applicable Requirements of Law;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of their respective Affiliates in the ordinary course of business);
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvv) make any change in any method of financial accounting or financial accounting policies, practices or procedures used by or with respect to the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Business, unless other than such change is changes as are required by or necessary to comply with GAAP;
(xvivi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, fail to manage its working capital in the ordinary course of business consistent with past practicepractices (including (A) deferring, delaying or postponing the payment of accounts payable or other liabilities or obligations other than in the ordinary course of business consistent with past practices, (B) accelerating the collection of accounts receivable other than in the ordinary course of business consistent with past practices or (C) failing to manage or purchase inventory in the ordinary course of business consistent with past practices); provided, however, that notwithstanding anything in this Agreement to the contrary, on or prior to the Closing, the Company may originate loans secured JV Entity and its subsidiaries shall be permitted to make distributions of cash or cash equivalents to ▇▇▇▇▇▇▇ or its Affiliates in ▇▇▇▇▇▇▇’ sole discretion;
(vii) enter into or amend any collective bargaining agreement;
(viii) acquire by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured merging or consolidating with, or by real estate on behalf purchasing a substantial portion of the Company stock or transfer assets of, any loans secured by real estate business or any corporation, partnership, association or other business organization or division thereof;
(ix) sell, transfer, license (other than granting non-exclusive licenses to customers in the ordinary course of business consistent with the past practices), abandon, or otherwise dispose of any assets (other than cash or cash equivalents) that are material, either individually or in the aggregate, to the Company; orBusiness or the Transferred Assets;
(xviix) make materially adversely modify, amend or terminate any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.Business Agreement that constitutes a Transferred Asset;
(cxi) The Company shall keep all insurance policies set forth on Schedule 5.22, amend or suitable replacements therefor, in full force and effect through terminate the Closing DateLicense Agreement or the Transition Services Agreement; or (xii) agree to do any of the foregoing.
Appears in 1 contract
Sources: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Sellers shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Sellers shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its each of their reasonable best efforts consistent with good business practice to maintain the business organization of the Company Divisions intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, Seller shall not, and Sellers shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from either Division any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingeither Division.
(b) In addition, and without limiting Section Notwithstanding SECTION 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to none of the Equity Interests, the Company or the Business, and Seller cause the Company not toSellers shall:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of either Division or make any expenditure in respect of either Division which shall exceed the Company outside the ordinary course of businessamount, as set forth in SCHEDULE 5.26, budgeted therefor;
(ivii) make any capital expenditure with respect to either Division or enter into any contract or commitment therefor in excess of $50,000; provided thattherefor, other than capital expenditures or commitments for capital expenditures referred to in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate applicable budget contained in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySCHEDULE 5.26;
(viii) (A) except as contemplated by SCHEDULE 5.26, enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.20 if in effect on the date hereof, hereof or enter into any contract with respect to the Business which cannot be assigned to Buyer or a permitted assignee of Buyer under SECTION 13.5;
(Biv) enter into any Contract which would require contract for the consent purchase of a third party real property to be used by either Division or for the sale of any Owned Real Property or exercise any option to purchase real property listed in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement SCHEDULE 5.10 or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereofSCHEDULE 5.11;
(viv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company either Division to any Seller or any of its respective Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viivi) cancel any debts owed to or claims held by the Company either Division (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money in respect of either Division (other than money borrowed or advances from any Seller or any of its respective Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixviii) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xix) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(x) allow the levels of raw materials, supplies, work-in-process or other materials included in the inventory of either Division to vary in any material respect from the levels customarily maintained in the Business;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to any Seller or any of its Affiliatesrespective Affiliates (other than cash realized upon collection of receivables generated in the ordinary course of the Business);
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyeither Division;
(xiii) make any material increase change in the compensation of the employees of the Companyeither Division, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Axiv) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to SECTION 8.3(a) or accelerating deductions to periods ending on or before the Closing Datefor which any Seller is liable pursuant to SECTION 8.3(a), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;); or
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule SCHEDULE 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Between the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayeddate hereof and the Closing, Seller shall use its reasonable efforts to cause each of the Seller Subsidiaries to, operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary and normal course consistent with past practices and substantially as presently operatedoperated except as business may be impacted by this Agreement. Consistent with In furtherance and not in limitation of the foregoing, Seller shall, and shall cause each of the Company Seller Subsidiaries to use commercially reasonable efforts to, (i) keep and maintain its assets and properties in substantially the material assets of the Company in good same operating condition and repair (normal wear and shall use tear excepted) as currently maintained, (ii) maintain its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve maintain its relationships with the goodwill of the suppliers, contractors, licensors, licensees, franchisees, distributors, employees, brokerscustomers, lenders distributors and others having business relations with Seller and the Company. In connection therewithSeller Subsidiaries, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt continue all existing policies of insurance in full force and effect and at least at such levels as are in effect on the date hereof, or to persuade replace any such employee policies with equivalent replacements, and (iv) duly comply with all applicable Laws. Seller will promptly notify Purchaser of any material lawsuits, claims, proceedings or investigations brought, asserted or commenced, or threatened in writing to terminate his be brought or her relationship with asserted, against the Company Seller Subsidiaries or not to continue employment with any of their officers or directors involving in any way the Company after business, properties or assets of Seller or the ClosingSeller Subsidiaries.
(b) In addition, and without limiting Notwithstanding anything to the contrary contained in Section 7.4(a5.04(a), except as expressly contemplated by this Agreement or except with the express prior written approval (making reference to this Section 5.04(b)) of Buyer Purchaser (which Buyer agrees approval will act to prevent any action so approved from being deemed a breach of any representation, warranty or covenant of Parent or Seller set forth in this Agreement and shall not be unreasonably withheld or delayeddeemed to have been granted five Business Days after the date of receipt of the written request (making reference to this Section 5.04(b)) unless denied in writing), Seller shall not, with respect to the Equity Interests, the Company and shall not permit or the Business, and cause any Seller cause the Company not Subsidiary to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations compensation pattern and practices of the Company outside Seller or Seller Subsidiaries as established in preceding years, agree to any increase in the ordinary course compensation payable or to become payable to any of business;
(iv) make any capital expenditure their respective officers, directors, employees or agents, or enter into or modify any contract or commitment therefor in excess other agreement requiring any of $50,000; provided thatthem to make payment to any officer, director or employee other than as required by Law, the provisions of such contract or paid in the ordinary course of business consistent with past practice;
(ii) incur any known Liability or make any expenditure, other than such as may be incurred or made in the Company may originate loans secured ordinary course of business consistent with past practices, or create, incur, assume or guaranty any Indebtedness or enter into any capitalized leases; provided, that Purchaser's approval for the incurrence of Indebtedness in order to meet cash needs arising in the ordinary course of business consistent with past practice on market terms and with no prepayment penalties shall not be unreasonably withheld;
(iii) make any amendment or termination of any material agreement to which it is or was a party or beneficiary or by 1-to-4 family residential real estate in an aggregate principal amount not which it is or was bound, or cancel, modify or waive any debts owed to exceed $2,000,000 per month; provided further that or claims held by it (including the settlement of any claims or litigation), or waive any substantial right. Without limiting the generality of the foregoing, Seller shall not originate and shall not permit any loans secured by real estate Seller Subsidiary to, modify or terminate the B▇▇▇▇▇▇ ▇▇▇▇▇ Synthetic Lease (other than the repayment thereof in accordance with its terms following commencement of formal legal action for such repayment; provided that Purchaser's approval for the incurrence of any such Indebtedness on behalf market terms and with no prepayment penalties shall not be unreasonably withheld) or the U.K. Flagship Store Lease, settle any claims or take any other action with respect thereto, other than the continued payment of rent in accordance with past practice, except with the Company or transfer any loans secured by real estate to the Companyprior written consent of Purchaser in its sole discretion;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viiv) sell, lease (as lessor)transfer, transfer distribute, lease, abandon or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)mortgage, or mortgage or pledge, pledge or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests its assets, properties or (B) the assets or properties businesses, except for sales of the Company, other than, inventory in the case ordinary course of this clause (B), business consistent with past practice and except for Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xv) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business its business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement a good faith dispute with the payee or the transactions contemplated herebycreditor;
(xiiivi) make sell, assign, license or transfer any material increase Intellectual Property or other intangible assets;
(vii) extend credit other than in the compensation ordinary course of the employees of the Company, other than changes made in accordance with normal compensation practices and business consistent with past compensation practice or make any change in its credit practices, its method of accounting or accounting principles or practices, its methods of maintaining its books, accounts or business records, or its depreciation or amortization policies or rates theretofor adopted;
(Aviii) except as required enter into any agreement which is not cancelable without liability or cost on not more than 90 days notice and involving the annual payment of more than (euro)150,000 to which it is a party or by applicable Requirements of Lawwhich it or its assets, prepare properties or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any electionbusinesses are bound or subject, or adopt pursuant to which it agrees to indemnify any method that is inconsistent Person or to refrain from competing with positions taken, elections made any Person;
(ix) enter into or methods used in preparing amend any contract or filing similar Tax Returns in prior periods (including positions, elections other agreement with any labor union or methods that would have the effect of deferring income to periods ending after the Closing Date association representing any employee; or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxesadopt, enter into or amend any closing agreement Benefit Arrangement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, Foreign Plan or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied actuarial methods or assumptions used in funding any defined benefit Pension Plan, or make any change in the preparation of the financial statements contained assumptions or factors used in Schedule 5.4determining benefit equivalencies thereunder, unless such change is in each case other than as required by GAAPapplicable Law;
(xvix) originatereduce its cash or short-term investments or their equivalent, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, other than to meet cash needs arising in the ordinary course of business consistent with past practice;
(xi) adopt a plan of liquidation or resolutions providing for the liquidation, the Company may originate loans secured by 1dissolution, merger, consolidation or other reorganization;
(xii) amend its articles of incorporation, charter, bylaws or equivalent documents;
(xiii) revalue any portion of its assets, properties or businesses including, without limitation, any write-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf down of the Company value of inventory or transfer other assets or any loans secured write-off of notes or accounts receivable, except as required by real estate GAAP or local statutory accounting principles;
(xiv) materially change any of its business policies as applicable to the Company; orbusiness of the Seller Subsidiaries generally or as applicable to any Significant Seller Subsidiary, including, without limitation, advertising, marketing, pricing, purchasing, personnel, sales, returns, budget or product acquisition policies;
(xv) make any loan or advance to any of its officers, directors, employees, individual consultants, individual agents, Affiliates or other representatives, (excluding any amateur, professional or semi-professional athletes who are party to an endorsement, sponsorship or consulting arrangement with Seller or the Seller Subsidiaries), other than travel advances made in the ordinary course of business in a manner consistent with past practice, or as required by applicable Law or collective bargaining agreements);
(xvi) make any severance or termination payment to any of its officers, directors, employees, individual consultants, individual agents or other representatives, (excluding any amateur, professional or semi-professional athletes who are party to an endorsement, sponsorship or consulting arrangement with Seller or the Seller Subsidiaries) other than payments in the ordinary course of business consistent with past practice or as required by the arrangements referred to in Section 3.14(a) of the Seller Disclosure Schedule or by Law, or make any commitment for any such payment;
(xvii) make any material change capital expenditures in internal control over financial reporting, excess of (euro)100,000 individually or (euro)500,000 in the aggregate;
(xviii) enter into any contract for the purchase or lease of real estate;
(xix) cancel any existing policies or binders of insurance except in connection with the renewal or replacement of such policies or binders;
(xx) make any acquisition of all or (other than in the ordinary course of business) any change required part of the assets, properties, capital stock or business of any other Person; or
(xxi) other than as specifically contemplated by GAAP this Agreement, agree or commit to do, authorize or approve any change made by Seller with respect action to all do, any of its Controlled Affiliatesthe foregoing.
(c) The Company Notwithstanding anything to the contrary contained in Section 5.04(a) or (b), Seller shall keep all insurance policies not permit or cause any Seller Subsidiary to:
(i) declare, set aside, or pay any dividend or other distribution payable in cash, securities or other property with respect to, redeem, retire, reclassify, purchase or otherwise acquire, any shares of its capital stock (or other equity interests) other than to or for the benefit of another Seller Subsidiary, except to the extent required to comply with Section 5.12 of this Agreement;
(ii) prepay, redeem, purchase, defease or otherwise satisfy in any manner any indebtedness required to be paid by Seller pursuant to Section 6.06 or make any payments with respect thereto except for accrued interest payments for the fourth quarter of 2002, as reflected on the December 31, 2002 Financial Statements, or other regularly scheduled interest payments payable in 2003 in accordance with the provisions of the applicable loan agreements; provided, that Seller may cause a Seller Subsidiary to make a payment of principal with respect to such indebtedness, but in such event Seller shall make a cash capital contribution in the aggregate amount of any such principal repayment(s) promptly after such payment, but in any event prior to Closing, directly or indirectly, to the Seller Subsidiary that was obligated for such indebtedness; or
(iii) make any other payments to Seller or Parent, except as set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through Section 5.04(c)(iii) of the Closing DateSeller Disclosure Schedule.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Acquired Companies to operate and shall use its reasonable efforts to cause the Company to carry on the Business their business only in the ordinary course Ordinary Course of Business and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets Assets in the same working order and condition as such Assets are in as of the Company in good operating condition date of this Agreement (reasonable wear and repair tear excepted) and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company Acquired Companies intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcquired Companies.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the not permit any Acquired Company or the Business, and Seller cause the Company not to:
: (i) amend its articles of incorporation or by-laws (or similar organizational documents);
Organizational Documents; (ii) issue, grant, sell or encumber any shares of its capital stock or other securities, ; or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the any Acquired Company;
; (iii) make any material change in the Business business or the operations of the Company outside the ordinary course of business;
Acquired Companies; (iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000therefor, other than capital expenditures or commitments for capital expenditures currently budgeted; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if requires the Consent of any third party to consummate the Contemplated Transactions; or make any material modification to any existing Applicable Contract or to any Governmental Authorization, other than changes made in effect on the date hereof, good faith to cure document deficiencies; (Bvi) enter into any Contract which would require for the consent purchase, lease (as lessee) or other occupancy of a third party real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in connection with the consummation of the transactions contemplated by this Agreement or (CSchedule 4.11(a) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereof;
Schedule 4.11(b); (vivii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the any Acquired Company to Seller or any affiliates of its AffiliatesSeller), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance (other than a Permitted Encumbrance) on, any of (A) the Equity Interests or (B) the assets or properties Assets of the any Acquired Company, other than, than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the case Ordinary Course of this clause Business; (B), Permitted Encumbrances;
(viiviii) cancel any debts owed to or claims held by the any Acquired Company (including the settlement of any claims or litigation) other than in the ordinary course Ordinary Course of the Business consistent with past practice;
Business; (viiiix) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
; (ixx) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course Ordinary Course of the Business consistent with past practice;
Business; (xxi) delay or accelerate payment of any account payable or other liability of the Company Liability beyond or in advance of its due date or the date involving more than $25,000 when such liability Liability would have been paid in the ordinary course Ordinary Course of Business; (xii) allow the levels of raw materials, supplies, work-in-process or other materials included in the inventory of the Business consistent with past practice;
Acquired Companies to vary in any material respect from the levels customarily maintained; (xixiii) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of any dividend or distribution or other disposition of assets (other than cash and cash equivalents) Assets to Seller or any affiliate of its Affiliates;
any Seller other than distributions of cash in the Ordinary Course of Business; (xiixiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
Acquired Companies; (xiiixv) make any material increase change in the compensation of the employees of the CompanyAcquired Companies, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
; (Axvi) except as required by applicable Requirements make any material change in the accounting policies applied in the preparation of Law, the Financial Statements contained in Schedule 4.5; (xvii) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to Section 9.2(b) or accelerating deductions to periods ending on or before the Closing Datefor which Seller is liable pursuant to Section 9.2(a), ; or (Bxviii) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle take any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required action that would prohibited by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 6.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with The Selling Stockholders shall, and shall cause the written approval of BuyerCompanies to, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course course, consistent with past practice, and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller the Selling Stockholders shall cause the Company Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingCompanies.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth in Schedule 7.4 and except as contemplated by this Agreement (including, without limitation, any transactions related to the WCI Settlement, the WCI Escrow or the dividend of the Excess Cash Distribution to the Selling Stockholders pursuant to Section 8.11) or except with the express written approval of Buyer the Buyers (which Buyer agrees the Buyers agree shall not be unreasonably withheld or delayed), Seller the Selling Stockholders shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company Companies not to:
(i) amend its articles make any material change in the Business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure that is not consistent (in the amount or nature) with the capital expenditure budget set forth in the Capex Budget or enter into any contract or commitment therefor in excess of $50,000; provided thattherefor, other than in the ordinary course of business consistent with past practicebusiness, the Company may originate loans secured by 1-to-4 family residential real estate which is in an aggregate principal amount not to exceed excess of $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company250,000;
(v) (Aiii) enter into any Contract which would have been a Company Agreement if in effect on contract for the date hereof, (B) enter into any Contract which would require the consent purchase of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofreal property;
(viiv) sell, assign, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Companytheir assets, other than, than inventory and personal property sold or otherwise disposed of in the case ordinary course of this clause (B), business and other than Permitted Encumbrances;
(viiv) cancel or compromise any debts owed to or claims held by the Company them (including the settlement of any claims or litigation) or release any material rights of a Company other than in the ordinary course of the Business consistent business or in accordance with past practiceSection 7.5;
(viiivi) create, incur incur, guarantee or assume, or agree to create, incur incur, guarantee or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentsas contemplated by Section 8.11) to Seller the Selling Stockholders or any of its their Affiliates;
(xiiviii) (A) institute any material increase in any benefit provided under, or adopt or amend, any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees maintained for their employees, other than as required by any such plan, labor contract, collective bargaining agreement or Requirements of the CompanyLaw and (B) enter into any new employment, change in control, incentive, severance, retention or termination arrangement or (except for payments related to stay bonusas may be required by Requirements of Law) increase any benefits payable under existing employment, transaction completion bonuschange in control, severance payments incentive, severance, retention or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebytermination pay policies;
(xiiiix) make any material increase change in the compensation of the employees of the Companytheir employees, other than changes made in accordance with normal compensation practices or pursuant to existing contractual commitments (including, but not limited to, any commitment or obligation under any labor contract or collective bargaining agreement) and consistent with past compensation practices;
(Ax) except as required by applicable Requirements of Law, prepare hire or file terminate any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, employee or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, consultant other than in the ordinary course of business consistent with past practicepractices;
(xi) make any change in their charters or by-laws;
(xii) issue any capital stock or other securities (or securities exchangeable, the convertible or exercisable for capital stock or other securities) of any Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not or grant options, warrants, calls or other rights to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf purchase or otherwise acquire shares of the capital stock or other securities (or securities convertible into or exchangeable for capital stock or other securities) of any Company;
(xiii) split, combine or reclassify, or amend any term of, any shares of capital stock or other securities of any Company or transfer otherwise effect any loans secured recapitalization, reclassification or like change in the capitalization of any Company;
(xiv) make any material loans, advances or capital contributions to, or investments in, any other Person;
(xv) acquire (by real estate merger, amalgamation, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material properties or assets (other than assets acquired to produce or distribute products in the ordinary course of business);
(xvi) except for contracts entered into in the ordinary course of business, enter into any contract that would have been a Business Agreement if such Company were a party or subject thereto on the date of this Agreement, or terminate or amend in any material respect any such contract or any Business Agreement;
(xvii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiations or otherwise, make any commitment or incur any liability to any labor organizations, other than pursuant to a Requirement of Law;
(xviii) enter into or agree to enter into any merger or consolidation with any corporation or other entity, or acquire the securities of any other Person;
(xix) except to the Companyextent required by a Requirement of Law or GAAP, make any material change to any methods of accounting or methods of reporting revenue and expenses or accounting practices;
(xx) make any change to the management of working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory);
(xxi) settle, or offer or propose to settle, (x) any action, lawsuit, investigation, arbitration or other claim involving or against a Company (other than with respect to the WCI Settlement or the Wolverine Litigation), unless such settlement or offer or proposal to settle would otherwise violate clauses (ii) or (y) of this clause (xxi)) which settlement would result in (i) amounts payable by a Company in excess of $250,000 individually or $500,000 in the aggregate or (ii) any equitable or other non-monetary relief, or (y) any action, lawsuit, arbitration or dispute that relates to the transactions contemplated hereby; or
(xviixxii) make any material change in internal control over financial reporting, other than any change required commit or agree to do anything prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.4(b).
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Owens Corning)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by During the period between the date hereof until the earlier of the Closing Date and the date this Agreement or except with is validly terminated pursuant to Article VII, the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller Sellers’ Representative shall use its reasonable efforts to operate and shall use its reasonable best efforts to cause the Company to operate and carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement, except (i) as provided in this Agreement, (ii) to the extent required by any applicable Law, or (iii) as consented to in writing by Parent. Consistent with the foregoing, Seller during the period between the date hereof until the earlier of the Closing Date and the date this Agreement is validly terminated pursuant to Article VII, the Sellers’ Representative shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and (i) preserve the goodwill of the suppliers, contractors, licensors, employees, brokersclients, lenders customers and others having business relations with the Company. In connection therewith, Seller (ii) maintain its books and records in the usual, regular and ordinary manner, and (iii) preserve the operations of the Business.
(b) Except as required by Law or as set forth on Schedule 5.07(b), or as otherwise contemplated by this Agreement, or with the written approval of Parent (which Parent agrees shall not be unreasonably withheld, conditioned or delayed), between the date hereof and the earlier of the Closing Date and the date this Agreement is validly terminated pursuant to Article VII, the Sellers shall not, and shall cause their Affiliates not permit the Company to, with respect to do any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not tofollowing:
(i) amend its articles sell, transfer, convey or encumber any material asset of incorporation the Company, other than the sale or by-laws (or similar organizational documents)transfer of assets in the ordinary course of business and consistent with past practice and existing encumbrances on such assets;
(ii) issue, grant, sell authorize or encumber effect any shares of its capital stock amendment to or other securities, change the formation or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure governing documents of the Company;
(iii) make (A) issue, authorize the issuance of, sell or deliver or agree to commit to issue, sell or deliver any change in the Business or the operations equity interests of the Company outside or other securities convertible into, exchangeable for or evidencing the ordinary course right to subscribe for or acquire any equity interests in the Company, (B) grant any options, warrants, calls or other rights to purchase or obtain any equity interests of businessthe Company, or (C) split, combine, reclassify, cancel, redeem, or repurchase any equity interests of the Company, or declare, set aside or pay any dividends or other distributions in excess of fifteen million dollars ($15,000,000) in the aggregate, in respect of its equity interests;
(iv) make any capital expenditure adopt a plan of complete or enter into any contract partial liquidation, or commitment therefor in excess authorize or undertake a dissolution, consolidation, restructuring, recapitalization or other reorganization of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into make or change any Contract which would have been material Tax election, file any amended Tax Return, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a Company Agreement if in effect on the date hereofrefund of Taxes, (B) enter into or consent to any Contract which would require the consent of a third party in connection with the consummation extension or waiver of the transactions contemplated by this Agreement or (C) modifylimitation period applicable to any Tax claim, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on each case relating to the date hereofCompany;
(vi) sell, lease (incur or assume any indebtedness except for borrowings under any revolving credit facility as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case date of this clause (B), Permitted EncumbrancesAgreement;
(vii) cancel merge or consolidate with any debts owed to other Person or claims held acquire (whether by the Company (including the settlement merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any claims assets, securities, properties, interests or litigation) other than in the ordinary course of the Business consistent with past practicebusinesses;
(viii) createeffect any change in any of its methods of accounting, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, except as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businessmay be required by applicable Law;
(ix) accelerate incur any capital expenditures or delay collection of any notes or accounts receivable Liabilities in advance of or beyond their regular due dates or the dates involving more than respect thereof over two hundred fifty thousand ($25,000 when the same would have been collected 250,000) in the ordinary course of the Business consistent with past practiceaggregate;
(x) delay enter into any agreement or accelerate payment of any account payable arrangement that limits or other liability of otherwise restricts the Company beyond or any of their respective Affiliates or any successor thereto from engaging or competing in advance any line of its due date business, in any location or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceany Person;
(xi) except as expressly contemplated by Section 7.9amend, make, modify or agree terminate any Material Contract or enter or commit to make, enter into any distribution or other disposition Contract that would be a Material Contract if entered into prior to the execution of assets (other than cash and cash equivalents) to Seller or any of its Affiliatesthis Agreement;
(xii) institute cancel, compromise, waive or settle, or offer or propose to cancel, compromise, waive or settle, (A) any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of Legal Proceeding against the Company, except for payments related (B) any stockholder litigation or dispute against the Company or any of either of its officers or directors, or (C) any Legal Proceeding that relates to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation payable or to become payable or the benefits provided to its directors, officers or employees, or establish, adopt, enter into or amend any Plan, other than as may be required by any Governmental Authority or to comply with any applicable Laws;
(xiv) hire any employee or terminate any of the employees of the Company, (other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Datetermination for cause), or (B) settle engage the services of any independent contractor or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxesother individual;
(xv) make any change in the accounting policies applied in the preparation adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring or recapitalization of the financial statements contained in Schedule 5.4, unless such change is required by GAAPCompany or merge or consolidate into any other Person;
(xvi) originate, acquire, hold, (A) waive or abandon or otherwise dispose of any material Intellectual Property of the Company or (B) sell, transfer, securitize lease, license, convey or hedge loans secured by real estate; provided that, in the ordinary course otherwise dispose of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf material assets of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make authorize, agree or commit to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements thereforNotwithstanding the foregoing provisions of this Section 5.07, in full force and the event that Parent elects to terminate the Company’s 401(k) Plan (the “Savings Plan”), Parent shall provide written notice to such effect through to the Company no later than five (5) business days prior to the Closing Date, and the Company agrees to adopt resolutions to terminate the Savings Plan effective prior to the Closing.
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth The Company shall operate and carry on its business in Schedule 7.4 or as contemplated by this Agreement or except with the written approval Ordinary Course of BuyerBusiness including, which Buyer agrees shall not be unreasonably withheld or delayedwithout limitation, Seller the processing of cash receipts and disbursements. The Company shall use its all commercially reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain preserve its goodwill, prospects, rights, properties, assets and business, and to preserve and protect the business organization of the Company intact and preserve the goodwill of the Company's relationships with its suppliers, contractors, employees, brokerscustomers, lenders including without limitation, its current and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her prospective relationship with the Company or not Girl Scouts Councils with whom it has a Contract, relating to continue employment with the Company after the Closingsale of cookies thereto.
(b) In addition, and without limiting Section 7.4(aNotwithstanding SECTION 5.6(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller the Company shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toexcept as allowed on SCHEDULE 5.6:
(i) amend its articles other than is required pursuant to applicable Laws, take any act listed in subparagraph (a) through (j) of incorporation or by-laws (or similar organizational documents);SECTION 3.8; or
(ii) issueother than in the Ordinary Course of Business, grant, sell enter into or encumber terminate any Material Contract;
(iii) not issue any shares of its capital stock or other securitiesissue any distribution or dividend thereon of property or capital stock; PROVIDED, HOWEVER, notwithstanding anything herein to the contrary, the Company shall be entitled to (i) distribute or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for forgive the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes promissory note received from Parent in the equity capital structure respect of the Company;
Shanghai and Tainjin joint ventures, and (iiiii) make distributions from available cash on hand from time to time in any change in amount or amounts to Parent on or prior to the Business or end of business on the operations of Friday prior to the Company outside the ordinary course of businessClosing Date;
(iv) make any capital expenditure or enter into or contract for any contract hedging or commitment therefor in excess of $50,000; provided that, similar derivative transaction other than in the ordinary course Ordinary Course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyBusiness;
(v) (A) enter into any Contract engage in the offering of special programs whether written or oral including, without limitation, trade discounts, special payment terms, consignment programs, pricing changes or announced price increases which would have been a Company Agreement if will be effective in effect on the date hereof, (B) enter into any Contract which would require future other than in the consent Ordinary Course of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;Business; or
(vi) sell, lease (as lessor), transfer enter into or otherwise dispose issue letter of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, credit guarantees in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) connection with route man loans other than in the ordinary course Ordinary Course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBusiness.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through As of the Closing Date, any net intercompany receivables, payables, loans and any other corporate charges then existing between the Company, Parent and any affiliate (excluding the Company's Subsidiaries) shall be settled or forgiven (implementing whichever action is most tax advantageous to the Company) and any intercompany agreement between such parties shall be terminated.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees The Shareholders ------------------------------------ shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to operate and carry on the Business only their business in the ordinary course and substantially as presently operatedconsistent with past practice. Consistent with the foregoing, Seller the Shareholders shall cause the Company to keep and maintain the material assets and properties of the Company in good their current operating condition (normal wear and repair tear excepted) and shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity InterestsBuyer, the Company or the Business, and Seller cause Shareholders not shall permit the Company not to:
(i) amend its articles certificate of incorporation or by-laws (or similar organizational documents)laws;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or stock; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, 250,000 individually or $500,000 in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyaggregate;
(viv) (A) except as contemplated by Schedule 4.23, enter into any Contract ------------- contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 4.16 if in effect on the date hereof, (B) hereof ------------- or enter into any Contract contract which would require requires the consent or approval of a any third party in connection with the consummation of to consummate the transactions contemplated by this Agreement Agreement; or (C) modify, amend, terminate or grant make any consent or waiver under material modification to any existing Company Agreement or to any Contract that would have been Governmental Permits, other than changes made in good faith to cure document deficiencies;
(v) enter into any contract for the purchase, lease (as lessee) or other occupancy of real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in Schedule 4.10(A) or any option to extend a Company Agreement if it were lease listed in effect on the date hereof;Schedule 4.10(B); ----------------
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller the Shareholders or any of its their Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, than minor amounts of personal property sold or otherwise disposed of for fair value in the case ordinary course of this clause (B), business consistent with past practice and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Aptargroup Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Sellers shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company Acquired Companies to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Sellers shall cause the Company Acquired Companies to keep and maintain the material assets of the each Acquired Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the each Acquired Company intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the any Acquired Company. In connection therewith, Seller Sellers shall not, and shall not permit the Company Acquired Companies to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee of any Acquired Company to terminate his or her relationship with the such Acquired Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as set forth on Schedule 7.4(A) or as otherwise expressly contemplated by this Agreement Agreement, or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyers, Seller Sellers shall not, with respect to the Equity Interests, the and shall not permit any Acquired Company or the Business, and Seller cause the Company not to:
(i) amend its articles certificate of incorporation or by-laws (or similar organizational documents)laws;
(ii) issue, grant, sell or encumber any shares of its capital stock Interests or other securities, or ; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock Interests or other securities securities, redeem or otherwise acquire any Interests or other securities, or make any other changes in the equity capital structure of the such Acquired Company;
(iii) make any material change in the Business or the operations of the such Acquired Company outside the ordinary course of businessor acquire (including by merger or consolidation) any business or Person or otherwise acquire any assets (other than inventory) that are material;
(iv) make any capital expenditure or enter into any contract or commitment therefor therefor, other than (A) in excess of $50,000; provided thataccordance with the Acquired Companies’ 2015 capital expenditure budget, as set forth in the ordinary course of business consistent with past practiceSchedule 7.10, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount or (B) capital expenditures not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf 500,000 in the aggregate in excess of the Company or transfer any loans secured by real estate to the Companyamounts set forth in Schedule 7.10, in each case that are bona fide arms length transactions with non-Related Persons;
(v) (A) enter into any Contract Contract, agreement, undertaking or commitment which would have been a an Acquired Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection Contract, agreement, undertaking or commitment with the consummation of the transactions contemplated by this Agreement or any Related Person, (C) modify, amend, amend or terminate or grant any consent or waiver under any Acquired Company Agreement outside the ordinary course of business consistent with past practices or (D) amend any Contract that would have been a Company Agreement if it were in effect on the date hereofContract, agreement, undertaking or commitment with any Related Person;
(vi) enter into any Contract for the purchase or lease of real property or any option to extend any Real Property Lease or amend or terminate any Real Property Lease;
(vii) terminate or fail to renew any Contracts for insurance without obtaining comparable replacement coverage;
(viii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the any Acquired Company to a Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the any Acquired Company, other than, than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the case ordinary course of this clause (B), Business consistent with past practice and other than Permitted Encumbrances;
(viiix) cancel any debts owed to or claims held by the any Acquired Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practicepractice or in an amount less than $50,000;
(viiix) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement excess of Financial Accounting Standards No. 13), other than in the ordinary course of business$500,000;
(ixxi) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xxii) delay or accelerate payment of any account payable or other liability Liability of the any Acquired Company beyond or in advance of its due date or the date involving more than $25,000 when such liability Liability would have been paid in the ordinary course of the Business consistent with past practice;
(xixiii) except as expressly contemplated by Section 7.9allow the levels of raw materials, supplies, work-in-process, finished goods or other materials included in the inventory of any Acquired Company to vary in any material respect from the levels customarily maintained in the Business;
(xiv) make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to to, or pay, loan or advance any amount to, a Seller or any of its AffiliatesAffiliates (other than cash realized upon collection of receivables generated in the ordinary course of the Business);
(xiixv) institute other than pursuant to applicable Requirements of Laws, establish, adopt, enter into, amend, terminate, or modify benefits (including by way of exercising any material increase discretion) under any Acquired Company Plan (or any arrangement that would be an Acquired Company Plan if in effect as of the date hereof) or take any profitaction to amend or waive any performance or vesting criteria or to accelerate vesting, exercisability or funding under any Acquired Company Plan (or arrangement that would be an Acquired Company Plan if in effect as of the date hereof);
(xvi) enter, modify or terminate any collective bargaining, works council or similar agreement;
(xvii) hire or retain, or terminate the employment or services of, any (A) individual whose annual compensation is or is reasonably expected to be in excess of $100,000 (excluding any sales personnel on a standard commission schedule in accordance with the Acquired Companies’ past practices) or (B) sales personnel on a non-sharingstandard commission schedule;
(xviii) make any change in the compensation of employees, bonusindependent contractors or consultants, incentiveother than, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees who do not hold a position of the Companyvice president or a more senior position, except for payments related changes to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes base salary made in accordance with normal compensation practices and consistent with past compensation practices;
(Axix) except as required communicate with any employee regarding any compensation or benefits to be provided by applicable Requirements Buyers, any Acquired Company or any of Lawtheir respective Affiliates after the Closing without the prior consent of Buyers;
(xx) make any Tax election (on any Tax Return or otherwise), prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, position or adopt any method that is inconsistent with positions taken, elections made made, or methods used in preparing or filing similar Tax Returns in prior periods (including positionsperiods, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related relating to Taxes, enter into any closing agreement or similar agreement related relating to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvxxi) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP5.3;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviixxii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.; or
(cxxiii) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through agree to do any of the Closing Dateforegoing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by From the date of this Agreement or except with until the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedClosing, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoingExcept as otherwise contemplated herein or as set forth in Disclosure Letter Schedule 7.4, Parent and Seller shall cause the Company use commercially reasonable efforts to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company Division intact and to preserve the goodwill of the employeessuppliers, brokerscontractors, lenders licensors, Employees, customers, distributors and others having business relations with the CompanyDivision. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee Employee of the CompanyDivision, without the consent of Buyer (not to be unreasonably withheld), (i) transfer such employee Employee to Seller or an Affiliate another business unit of Seller, (ii) offer such employee employment terminate any Employee other than clerical or administrative personnel or for cause as determined in good faith by Seller or an Affiliate in the ordinary course of Seller after the Closing Date business consistent with past practice or (iii) otherwise attempt to persuade any such employee Employee to terminate his or her relationship with the Company Seller or not to continue commence employment with the Company Buyer after the Closing.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement Agreement, as set forth in Disclosure Letter Schedule 7.4, or except with the express written approval of as otherwise consented to by Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)in writing, Parent and Seller shall not, with in respect to the Equity Interests, the Company or of the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside the ordinary course Division, or change any of businessits brokerage policies or practices in any material respect, except as required by applicable law or by policies imposed by a Governmental Body;
(ivii) make any capital expenditure with respect to the Division or enter into any contract or commitment Contract therefor in excess of $50,000; provided that, in 100,000 outside the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viiii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company Division to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than except in the ordinary course of the Business consistent with past practice;
(viii) create, incur practice and for inventory and personal property sold or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement otherwise disposed of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected for fair value in the ordinary course of the Business consistent with past practicepractice and except for Permitted Encumbrances;
(xiv) delay or accelerate incur any material adverse change in its securities clearing, payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceand settlement activities;
(xiv) except as expressly contemplated by Section 7.9maintain Tentative Net Capital of Seller (on a company wide basis) of less than $18,000,000; provided, make, or agree to make, any distribution or other disposition of assets that for a period not less than five (other 5) consecutive Business Days Seller’s Tentative Net Capital may be less than cash and cash equivalents) to Seller or any of its Affiliates$18,000,000 but not less than $15,000,000;
(xiivi) solely with respect to the Division, maintain access to regulatory haircut capital (through Seller) of less than $10,500,000; provided, that for a period not less than three (3) consecutive Business Days Seller’s access to haircut capital may be less than $10,500,000 but not less than $6,500,000;
(vii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, Employees other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvviii) make any change in the accounting policies applied in the preparation compensation of the financial statements contained Employees, other than changes made in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business accordance with normal compensation practices and consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companycompensation practices; or
(xviiix) make prepare or file any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller Tax Return inconsistent with respect to all of its Controlled Affiliatespast practice.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Albany Companies Inc)
Operations Prior to the Closing Date. (a) Except as set forth otherwise expressly provided in Schedule 7.4 or as contemplated by this Agreement or except with the written approval as required by any Requirements of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedLaws, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company and the Subsidiary to carry on the Business only in the ordinary course and substantially as presently operatedconsistent with past practice. Consistent with the foregoing, Seller shall cause the Company and the Subsidiary to keep and maintain the material assets of the Company and the Subsidiary in good operating condition and repair and shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company and the Subsidiary intact and to preserve the goodwill of the suppliers, contractors, employees, brokers, lenders customers and others having business relations with the CompanyCompany and the Subsidiary. In connection therewith, Seller shall not, and shall not permit the Company or the Subsidiary to, with respect to any employee of the Company, Company or the Subsidiary (i) transfer such employee to Seller or an Affiliate another business unit of Seller, (ii) offer such employee employment by another business unit of Seller or an its Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company Seller or not to continue commence employment with the Company Buyer after the Closing.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees approval shall not be unreasonably withheld or delayedwithheld, provided, that Buyer’s approval with respect to clauses (iv), (vi)-(viii), (x), (xiii), (xiv) and (xxiii) shall be in Buyer’s sole discretion), Seller shall not, with respect to the Equity Interests, not permit the Company or the BusinessSubsidiary to do, and Seller cause or agree to do, any of the Company not tofollowing:
(i) change its interest rate or fee pricing policies with respect to Company Deposits or Company Loans other than in the ordinary course of business consistent with past practice provided, that Seller gives Buyer notice of any changes made to such interest rate or fee pricing policies;
(ii) amend, terminate, waive or modify any of the terms of (x) any Company Loan or Company Deposit except in the ordinary course of business consistent with past practice and only to the extent that such amendment, termination, waiver or modification does not alter the terms of such Company Loan or Company Deposit in any material respect and is not adverse to the Company or Buyer in any manner or (y) any Investment;
(iii) (x) enter into any new line of business, amend, waive or modify its lending, investment, underwriting, risk and asset liability management and other banking and operating policies or (y) make any underwriting exceptions in making or renewing any consumer loans, except as required by applicable Requirements of Laws;
(iv) enter into or approve any Company Loan or a group of related Company Loans in excess of $250,000 in the aggregate, enter into or approve any renewal of any existing Company Loan or group of related Company Loans in excess of $750,000 in the aggregate or enter into or renew any Interest Rate Instrument;
(v) fail to make additional extensions of credit in the ordinary course of business consistent with past practices (subject to the Company’s customary credit underwriting qualifications) to any customer with any Company Loan with an aggregate principal amount of less than $250,000;
(vi) accept or renew any (w) Related Deposits, (x) deposits from customers located outside the State of Iowa other than in the ordinary course of business consistent with past practice and not constituting Related Deposits, (y) brokered deposits or (z) CDARS Deposits;
(vii) purchase or invest in any securities or other investments other than ▇▇▇▇▇▇ ▇▇▇▇ with a duration of less than three years;
(viii) close, sell, consolidate, or relocate any Company Branch;
(ix) amend its articles of incorporation or byBy-laws (or similar organizational documents)laws;
(iix) issue, grant, sell or encumber any shares of its capital stock or other securities, or ; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyCompany or the Subsidiary;
(iiixi) make any change undertake or commit to undertake capital expenditures exceeding $25,000 in the Business or the operations of the Company outside the ordinary course of businessaggregate;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (Axii) enter into any Contract (x) which would have been classified as a Company Agreement if in effect on the date hereof, (By) enter into any Contract which that would require the consent of a third party in connection with be breached by the consummation of the transactions contemplated hereby or by this the Merger Agreement or (Cz) modifythat cannot be terminated upon 30 days notice without any payment or penalty, or amend, terminate terminate, waive or grant any consent or waiver under modify any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofGovernmental Permit;
(vixiii) enter into any Contract for the purchase of real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in Schedule 5.10(A);
(xiv) sell, lease (as lessor), transfer transfer, assign or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Shares or (B) the assets or properties of the CompanyCompany or the Subsidiary (including any Company Loan, or Company Deposits), other than, than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the case ordinary course of this clause (B), the Business consistent with past practice and other than Permitted Encumbrances;
(viixv) cancel any debts owed to or claims held by the Company or the Subsidiary (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiixvi) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixxvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xxviii) delay or accelerate payment of any account payable or other liability of the Company or the Subsidiary beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xixix) except as expressly contemplated by Section 7.9, allow the levels of materials included in the inventory of the Company or the Subsidiary to vary in any material respect from the levels customarily maintained in the Business;
(xx) (i) make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates; provided, that prior to the date the Pricing Certificate is required to be delivered to Buyer pursuant to Section 3.2, the Company may reimburse Seller or its Affiliate the amount of any bona fide liabilities of the Company that are duly paid by Seller or its Affiliate (which shall not be the Company or the Subsidiary) on behalf of the Company in the ordinary course of business consistent with past practice, in each case if the Company is permitted under this Agreement directly to discharge the same or (ii) fail timely to pay to the Company any amount payable thereto by Seller or any of its Affiliates in the ordinary course of business consistent with past practice;
(xiixxi) terminate any employee, except in the ordinary course of business consistent with past practice;
(xxii) hire, promote or transfer from or to the Company or the Subsidiary any employee or reassign (except a reassignment within the Company in the ordinary course consistent with past practices) any employee;
(xxiii) institute any material increase in any compensation payable to any employee of the Company or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect benefits made available to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiixxiv) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to Section 8.2(a) or accelerating deductions to periods ending on or before the Closing Datefor which Seller is liable pursuant to Section 8.2(a), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes);
(xvxxv) make any change in the accounting policies and practices applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviixxvi) make any material change in internal control over financial reporting, ;
(xxvii) make any material change in any information technology system utilized by the Company or the Subsidiary; or
(xxviii) enter into or become committed to enter into any other than any change required by GAAP or any change made by Seller with respect to all material transaction except in the ordinary course of its Controlled Affiliatesbusiness.
(c) The Company shall keep all insurance policies set forth charge-offs, write-downs and other real estate owned established on Schedule 5.22, or suitable replacements therefor, in full force the Company’s books and effect through records between the date hereof and the Closing DateDate will be established in accordance with the requirements of GAAP, consistently applied to the Company’s past practice, and will properly reflect the losses incurred on outstanding Company Loans (including accrual interest receivable).
Appears in 1 contract
Sources: Stock Purchase Agreement (Citizens Republic Bancorp, Inc.)
Operations Prior to the Closing Date. (a) From the date hereof until the Closing Date, each Company shall (and ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall cause each Company to) (i) operate its business only in the ordinary course consistent with past practices; and (ii) use reasonable best efforts to (A) preserve intact its present business organization, (B) preserve its goodwill, (C) maintain its relationships with Clients, insurance underwriters and other third parties having business dealings with such Company, (D) maintain its assets and properties in good operating condition and repair, ordinary wear and tear excepted, (E) maintain in effect all material Licenses required to carry on its business as currently conducted, and (F) keep available the services of its key officers and employees.
(b) Except as set forth in Schedule 7.4 or as contemplated expressly permitted by this Agreement or except with the written as approved in writing by Buyer (which approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedwithheld, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld conditioned or delayed), Seller from the date hereof until the Closing Date, none of the Companies shall not, with respect to the Equity Interests, the Company or the Business, (and Seller ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall cause the each Company not to:):
(i) amend its articles of incorporation or by-laws (or similar organizational documents)Organizational Documents;
(ii) authorize, issue, grant, sell or encumber transfer any shares of its capital stock or other securities, equity interests of such Company or issue, grant, sell any securities convertible into or encumber any security, option, warrant, put, call, subscription exercisable or other right of any kind, fixed or contingent, that directly or indirectly calls exchangeable for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure interests of the such Company;
(iii) make adjust, split or reclassify any change in the Business capital stock or the operations other equity interests of the Company outside the ordinary course of businesssuch Company;
(iv) declare, set aside or pay any dividend or other distribution (whether in cash, stock or other property) in respect of any capital stock or other equity interests of such Company;
(v) merge or consolidate with any other Person or acquire any business or assets of any other Person (whether by merger, stock purchase, asset purchase or otherwise);
(vi) form any subsidiary;
(vii) make any material change in the operation of its business, except such changes as may be required to comply with any applicable Law;
(viii) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatexpenditure, other than in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate and in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company1,000;
(vix) enter into, amend in any material respect, or terminate (Aother than in accordance with its terms) any Contract that would constitute a Material Contract, or waive, release or assign any rights or claims thereunder;
(x) enter into any Contract which would have been (A) that has a Company Agreement if term of, or requires the performance of any obligations over a period, in effect on the date hereofexcess of one year, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement that cannot be terminated without penalty on less than three months notice or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofcannot be assigned to Buyer;
(vixi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledgemortgage, encumber, pledge or impose or suffer to be imposed any Encumbrance Lien on, any of its assets or properties, other than (A) the Equity Interests or pursuant to existing Contracts and (B) the dispositions of immaterial assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, fair value in the ordinary course of business consistent with past practicepractices;
(xii) create, incur, assume or guarantee any Indebtedness;
(xiii) make any loans, advances or capital contributions to, or investments in, any Person (other than advances of expenses to employees in the Company may originate loans secured ordinary course of business consistent with past practices);
(xiv) cancel any debts owed to, or waive any claims or rights held by, such Company;
(xv) commence, settle or compromise any Action by 1-to-4 family residential real estate or against such Company, other than settlements entered into in the ordinary course of business consistent with past practices and requiring only the payment of monetary damages in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate 5,000;
(xvi) (A) increase the compensation, bonuses or other benefits payable to, or pay any loans secured bonus to, any of its directors, officers, employees or independent contractors, (B) enter into or amend any employment, consulting, severance or change of control agreement with any such person, or (C) enter into, adopt or amend any Employee Benefit Plan, in each case other than as required by real estate on behalf of the Company applicable Law, any existing Contract or transfer any loans secured by real estate to the Company; orexisting Employee Benefit Plan;
(xvii) (A) hire any new employee or make an offer of employment to any person, (B) engage any consultant or independent contractor or (C) promote any current employee;
(xviii) make any material change in internal control over financial reportingthe accounting methods, other than principles or policies applied in the preparation of the Financial Statements, except for any change required by GAAP applicable Law or any a concurrent change made by Seller with respect to all of its Controlled Affiliates.in GAAP;
(cxix) The Company shall fail to file any material Tax Return when due or pay any material Tax when due (other than Taxes being contested in good faith);
(xx) make or change any Tax election or consent to any waiver or extension of time to assess or collect any Taxes;
(xxi) fail to pay any accounts payable when due (other than amounts being contested in good faith) or fail to use commercially reasonable efforts to collect any accounts receivable when due;
(xxii) fail to renew or otherwise keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through any material License relating to its business; or
(xxiii) enter into any agreement, commitment or understanding (whether written or oral) with respect to any of the Closing Dateforegoing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hub International LTD)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 6.4 or as otherwise contemplated by this Agreement or except with the written approval of consented to in writing by Buyer, each of the Seller and the Company shall (and shall cause each Subsidiary to) conduct its business in the ordinary course and shall use its commercially reasonable efforts to (i) preserve intact, in all material respects, the current business organization and ongoing operations of Seller, the Company and the Subsidiaries (including the relationships between Seller, the Company and the Subsidiaries and their respective directors, officers, executives, and managers, although neither shall be required to pay, or promise to pay, any consideration (other than compensation to which such individuals are currently entitled as directors or employees, subject to any changes in compensation in accordance with existing compensation policies, practices or procedures) as an inducement to continue their employment with Seller, the Company or any Subsidiary); (ii) maintain relations and goodwill with suppliers, customers, landlords, employees, creditors, and movie studios with whom Seller, the Company and the Subsidiaries have relationships; (iii) perform in all material respects its obligations under the Material Contracts; (iv) maintain the properties and assets of Seller, the Company and the Subsidiaries in good repair and condition (excluding normal wear and tear); (v) maintain the insurance policies of Seller, the Company and the Subsidiaries in a manner consistent with past practice; and (vi) pay all Taxes as such Taxes become due and payable consistent with past practice.
(b) Except as set forth in Schedule 6.4 or as otherwise contemplated by this Agreement (including with respect to the Contribution) or consented to in writing by Buyer (which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, delayed with respect to any employee of the Companymatters set forth in clauses (vi), (i) transfer such employee to Seller or an Affiliate of Sellerx), (iixi), (xii), (xv) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iiixviii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting of this Section 7.4(a6.4(b)), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller and the Company shall notnot (and shall not permit any Subsidiary to): (i) issue, sell or deliver any equity interest or any securities convertible into, options with respect to, warrants to purchase or rights to subscribe for, any equity interest; (ii) effect any recapitalization, reclassification, unit or equity interest dividend, unit split or like change in its capitalization or otherwise make any change in its capital structure; (iii) amend its Certificate of Formation or Limited Liability Company Agreement (or equivalent organizational documents); (iv) merge with or into, consolidate with or acquire all or substantially all of the stock or assets of any other Person; (v) create, incur or assume any Indebtedness, other than (x) trade payables in the ordinary course of business consistent with past practice or (y) borrowings under Seller’s, the Company’s or any of the Subsidiaries’ existing credit facilities (to the Equity Interestsextent such amounts are to be taken into account in the calculation of the Closing Date Payment Amount); (vi) make any material loans to any Person or advances to employees of Seller, the Company or the Businessany Subsidiary not, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure case of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatadvances, in the ordinary course of business consistent with past practice; (vii) make any capital contributions to, or investments in, or acquire the securities of, any other Person; (viii) make any change in any accounting or auditing practice, other than those required by GAAP; (ix) make or change any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, file any amended Return, enter into any closing agreement, consent to the extension or waiver of the limitations period applicable to any Tax claim or assessment, surrender any right to claim a Tax refund or take or omit to take any other action, if any such change, adoption, filing, consent, surrender, action or omission would have the effect of materially increasing the Tax liability of Seller, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate or any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
Subsidiaries; (v) (Ax) enter into any Contract which of the type that would have been a Company Agreement be required to be disclosed on Schedule 4.12(a) if in effect on entered into prior to the date hereof; (xi) terminate, cause the termination of, amend, renew or extend any Material Contract, or waive or release any material rights or claims thereunder; (xii) pay, discharge, or satisfy any material claims or Liabilities, other than in the ordinary course of business consistent with past practice, or fail to pay or otherwise satisfy (except if being contested in good faith) any material accounts payable, Liabilities, or obligations when due and payable; (xiii) create any new subsidiary; (xiv) adopt a plan of complete or partial liquidation or dissolution; (xv) make any material change in the compensation of the directors, officers or salaried employees of Seller, the Company or any Subsidiary (other than employees who will not be Company Employees) and except for (A) salary increases to salaried employees (other than officers and directors) made in the ordinary course of business) and (B) enter into any Contract which would require the consent adoption of a third party retention bonus and/or severance benefit plan established by Seller for the benefit of employees of Seller, the Company or any Subsidiaries, solely to the extent that all bonuses, benefits, or other amounts payable thereunder are deemed to constitute Seller Retention Obligations and are otherwise for the sole account of Parent or Seller; (xvi) dispose of or acquire any assets outside the ordinary course of business consistent with past practice; (xvii) grant any material licenses under any material Company Intellectual Property other than in connection the ordinary course of business; (xviii) make any change in any accounting, auditing, billing or collection practice, except as required by GAAP or Requirements of Law; (xix) make any material change to its ordinary course cash management practices; (xx) mortgage, pledge, or subject to any Encumbrance any asset or property of Seller, the Company or any Subsidiary, whether tangible or intangible, except Permitted Encumbrances; or (xxi) agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary in this Section 6.4 (but otherwise subject to the terms of this Agreement, including, for the avoidance of doubt, Section 6.5), Sections 6.4(a) and 6.4(b) shall not in any way apply to the Retained Assets or Retained Liabilities; provided, that (i) title to the Retained Assets and Retained Liabilities shall remain with Seller or Parent, as applicable, and (ii) any actions taken by Parent or Seller with respect to the Retained Assets and Retained Liabilities shall not interfere with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in adversely effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assumeSubsidiary, or agree to createthe businesses, incur theatres, properties, assets or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets liabilities thereof (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Datede minimis adverse effects), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. Sellers covenant and agree that, except (ai) Except as set forth in Schedule 7.4 or as contemplated by this Agreement Agreement, (ii) as disclosed in Schedule 7.2 or except any other Schedule as of the date hereof, (iii) with the prior written approval consent of Buyer, Buyer (which Buyer agrees consent shall not be unreasonably withheld or delayed) and (iv) as otherwise required by Legal Requirements, Seller shall use its reasonable efforts after the Effective Date and prior to operate and shall use its reasonable efforts to cause the Company to Closing Date:
(a) Sellers shall:
(i) carry on the Business only in the ordinary course course, taking into account Sellers’ status as debtors in possession;
(ii) maintain their books, accounts and substantially records in accordance with past custom and practice;
(iii) use commercially reasonable efforts, taking into account Sellers’ status as presently operated. Consistent with the foregoingdebtors in possession, Seller shall cause the to (A) retain Company to keep and maintain the material assets of the Company employees who are in good operating condition standing and repair are either necessary to conduct the Business as it is currently being conducted or are otherwise identified as persons needed to provide transition services after the Closing, (B) retain Facility Employees who are in good standing, and shall use its reasonable best efforts consistent (C) maintain their relationships with good business practice to maintain the business organization of the Company intact and preserve for the Business the goodwill of the employeestheir key suppliers and customers;
(iv) use commercially reasonable efforts, brokerstaking into account Sellers’ status as debtors in possession, lenders and others having business relations to (A) comply in all material respects with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, all applicable laws with respect to any employee the conduct of the CompanyBusiness, (iB) transfer comply in all material respects with contractual obligations applicable to or binding upon them pursuant to Assigned Contracts and (C) maintain in full force and effect all Permits specified in Section 2.1(a)(v) or as otherwise required for the ownership of the Acquired Assets or the operation of the Business as it is currently conducted;
(v) use commercially reasonable efforts, taking into account Sellers’ status as debtors in possession, to cause any of their current property insurance policies with respect to the Facility or any of the other Acquired Assets not to be canceled or terminated or any of the coverage thereunder to lapse unless, simultaneously with such employee termination, cancellation or lapse, replacement, policies providing coverage equal to Seller or an Affiliate greater than the coverage under the canceled, terminated or lapsed policies are in full force and effect; and
(vi) use commercially reasonable efforts, taking into account Sellers’ status as debtors in possession, to maintain in full force and effect the existence of Seller, (ii) offer such employee employment all material Intellectual Property owned by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt Sellers and necessary to persuade any such employee provide transition services to terminate his or her relationship Buyer in accordance with the Company or not to continue employment with the Company after the Closingterms of this Agreement.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller Sellers shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or voluntarily impose or suffer to be imposed imposed, any Encumbrance on, (other than Assumed Liabilities and Permitted Encumbrances) on any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted EncumbrancesAcquired Assets;
(viiii) cancel fail to maintain the Acquired Assets in their present condition, reasonable wear and tear excepted;
(iii) amend any debts owed to of the Assigned Contracts or claims held by any Contract included in the Company (including the settlement of any claims or litigation) Acquired Assets other than non-material amendments made in the ordinary course;
(iv) cease to operate or maintain the Facility in a manner consistent with past practice (after the Petition Date);
(v) grant to any Facility Employee any increase in compensation except in the ordinary course of the Business Sellers’ business and consistent with past practice;
(viiivi) create, incur set aside or assumepay any dividend or other distribution (including cash dividends or cash distributions) in respect of any ownership interests in Central City, or agree redeem, repurchase or otherwise acquire or offer to createredeem, incur repurchase, or assumeotherwise acquire any such ownership interests, provided, however, that nothing in this Section 7.2(b)(vi) shall in any Indebtedness or enter into, as lessee, manner limit any capitalized lease obligations (as defined in Statement Seller’s payment of Financial Accounting Standards No. 13), other than distribution of cash to the extent provided in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyDIP Budget; or
(xviivii) make enter into any material change in internal control over financial reporting, other than agreement or commitment to take any change required action prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.2.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Each Seller shall use its commercially reasonable efforts to operate to, and shall use its reasonable efforts to cause the Company to Acquired Companies to, operate and carry on the Business only in the ordinary course and substantially as presently operatedconsistent with past practice. Consistent with the foregoing, each Seller shall use its commercially reasonable efforts to, and shall cause the Company Acquired Companies to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to, preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors of the Acquired Companies and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcquired Companies.
(b) In addition, and without Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller Sellers shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13)Acquired Companies, other than in the ordinary course of business, not to:
(i) make any material change in the lines of business of the Business, except such changes as may be required to comply with any applicable Requirements of Law;
(ixii) accelerate purchase or delay collection otherwise acquire any assets, acquire or license any rights to new products, or make any capital expenditures, in each case that are material to the Business (other than (A) capital expenditures required by any Governmental Body, (B) such capital expenditures not covered by the preceding clause (A) that do not exceed $100,000, and (C) purchases of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected inventory in the ordinary course of business);
(iii) sell, assign, lease or otherwise transfer, abandon or dispose of any assets, securities, properties or interests of either of the Acquired Companies that are material, either individually or in the aggregate, to the Business (other than the disposition of inventory or obsolete and fully depreciated assets not used in the Business during the twelve (12) months preceding the date hereof);
(iv) fail to keep current or renew any material Governmental Permits in a manner consistent with past practice;
(xv) delay make any change in the key personnel of the Business (at or accelerate above the vice president level), including the hiring of personnel at or above the vice president level or the termination of any personnel at or above the vice president level out of the Business (other than for cause), or materially increase the number of individuals employed by the Business;
(vi) enter into, terminate, modify, amend or exercise any option to extend a Material Contract or Lease Agreement;
(vii) create, incur, assume or otherwise become liable, or agree to create, incur, assume or otherwise become liable, with respect to any Indebtedness, or grant any Encumbrance with respect to the assets of either of the Acquired Companies, in each case other than Permitted Encumbrances;
(viii) make any loan to any third party;
(ix) transfer any assets to any Seller or any of its Affiliates (other than the Acquired Companies), excluding the payment of any account payable or other liability of compensation to Sellers that are employed by the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of business;
(x) materially increase the Business consistent compensation, base salary, wages, bonus opportunity or other benefits available to any current or former employee of the Acquired Companies (with past practicean annual salary above $100,000), other than as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(xi) except as expressly contemplated by Section 7.9, make, voluntarily recognize or agree promise neutrality to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliatesa labor organization;
(xii) institute establish, adopt, amend or terminate any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the CompanyPlan, except for payments related as required or advisable to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result comply with Requirements of this Agreement or the transactions contemplated herebyLaw;
(xiii) make any material increase in the compensation acquire by merging or consolidating with, or by purchasing a substantial portion of the employees of the Companycapital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other than changes made in accordance with normal compensation practices and consistent with past compensation practicesbusiness organization or division thereof;
(Axiv) except as required by applicable Requirements grant or accept any request from any of Lawthe ten (10) largest customers for fiscal year ended February 28, prepare 2015 for revenue for trade, cash and quantity discounts, prompt pay discounts, price reduction programs or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxesretroactive price adjustments;
(xv) initiate, compose or settle any litigation or Proceeding affecting the Business or any Acquired Company, in each case, involving an amount individually in excess of $25,000;
(xvi) make any change in the accounting methods or policies applied in the preparation of the financial statements contained in Schedule 5.4Acquired Companies, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement or Tax ruling, settle or compromise any Tax claim or assessment, consent to the extension or waiver of the limitation period applicable to any Tax claim or assessment, surrender any right to claim a refund of Taxes, or file any amended Tax Return or make any Tax voluntary disclosure, in internal control over financial reportingeach case, unless specifically listed on Schedule 7.4(b)(xvii);
(xviii) issue, deliver or sell any securities of either of the Acquired Companies, other than the issuance of any change required by GAAP or securities to any change made by Seller with respect to all of its Controlled Affiliates.the other Acquired Companies;
(cxix) The Company shall keep all insurance policies set forth on Schedule 5.22, amend the Organizational Documents of the Acquired Companies; or suitable replacements therefor, in full force and effect through (xx) agree to do any of the Closing Dateforegoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Each Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business U.S. Operations only in the ordinary course and substantially as presently operatedoperated or as proposed to be operated (as previously discussed with Buyer), or as hereafter agreed to by Buyer. Consistent with the foregoing, each Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to: preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders sales representatives, distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit U.S. Operations; continue in effect all material existing policies of insurance (or comparable insurance) with third-party carriers of or relating to the Company to, with respect to any employee Business; keep available the services of the Companypresent officers, (i) transfer such employee employees and agents of the Business; continue production and promotional and sales efforts in accordance with existing plans and forecasts; and comply in all material respects with its obligations pursuant to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingFDA Consent Decree.
(b) In addition, and without limiting Notwithstanding Section 7.4(a6.3(a), except as expressly contemplated by this Agreement or except as required pursuant to the FDA Consent Decree, no Seller shall take any of the following actions, other than in the ordinary course of the conduct of the Business, as now conducted or as proposed to be conducted (as previously discussed with Buyer), or as hereafter agreed to by Buyer, without the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toBuyer:
(i) amend its articles make any material change in the conduct of incorporation or by-laws (or similar organizational documents)the U.S. Operations;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement required to be set forth in the Contracts Schedule if in effect on the date hereof, or enter into any contract which cannot be assigned to Buyer or a permitted assignee of Buyer;
(Biii) enter into any Contract which would require contract for the consent purchase of a third party in connection with real property or for the consummation sale of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofOwned Real Property;
(viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, than Inventory and minor amounts of personal property sold or otherwise disposed of in the case ordinary course of this clause (B)business, and other than Permitted Encumbrances;
(viiv) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) it, other than in the ordinary course of business or to the Business consistent with past practiceextent that such debts or claims constitute Excluded Assets or Excluded Liabilities;
(viiivi) create, incur or assume, or agree to create, incur or assume, assume any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businessobligation;
(ixvii) accelerate or delay collection of any notes or accounts receivable generated by the U.S. Operations in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practicebusiness;
(xviii) delay or accelerate payment of any account payable or other liability of the Company U.S. Operations beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practicebusiness;
(xiix) except as expressly contemplated by Section 7.9amend, make, terminate or agree to make, any distribution or other disposition give notice of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan termination with respect to employees of the Companyany existing agreement, except for payments related contract or commitment to stay bonuswhich Seller is a party, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make waive any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyrights thereunder; or
(xviix) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating their present condition and repair (fair wear and tear excepted) and shall use its all reasonable best efforts consistent with good business practice to maintain the business organization of the Company Seller intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, Seller shall not, and shall not permit without the Company toprior written approval of Buyer (i) transfer or cause to be transferred from Seller any employee, with respect or (ii) offer employment after the Closing Date to any employee of the Company, (i) transfer such employee to Seller or an Affiliate other than the Remaining Employees without the prior written consent of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or Buyer (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with Seller, other than for cause in the Company or not to continue employment with the Company after the Closingordinary course of business.
(b) In addition, and without limiting Section 7.4(a), except as Unless expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of businessSeller;
(ivii) make any capital expenditure or enter into any contract for the sale of any Owned Real Property or commitment therefor exercise any option to purchase real property listed in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySchedule 5.10;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viiii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, in the case than inventory and personal property sold or otherwise disposed of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than for fair value in the ordinary course of the Business consistent with past practicepractice and other than Permitted Encumbrances;
(viiiiv) createallow the levels of raw materials, incur supplies, work-in-process or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than materials included in the ordinary course inventory of businessSeller to vary in any material respect from the levels customarily maintained in the Business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare welfare, provident fund or other employee benefit plan with respect Table of Contents to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or Seller other similar payments than changes made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;in accordance with normal practices and consistent with past practices in consultation with Buyer; or
(xiiivi) make any material increase in change the compensation of the employees of the CompanySeller, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except Prior to the Closing, except as (u) set forth in on Schedule 7.4 7.4(a) or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, solely with respect to any employee of the CompanyExcluded Liabilities, (iv) transfer such employee to Seller or an Affiliate of Sellerrequested by any Governmental Body, (iiw) offer such employee employment required by Seller or an Affiliate Requirements of Seller after the Closing Date or Law, (iiix) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement (including the consummation of the Reorganization), (y) required pursuant to any Contract to which the Business is a party as of the date hereof or except (z) approved with the express prior written approval consent of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned o delayed), Parent shall (A) cause the Business to operate and carry on its business in all material respects in the ordinary course of business and substantially as operated immediately prior to the date of this Agreement, and (B) use its reasonable best efforts to preserve the goodwill of the Business, maintain the assets and properties of the Business in good repair, and maintain satisfactory relationships with suppliers, customers, the Business Employees and other Persons having business relationships with the Business.
(b) Notwithstanding Section 7.4(a), except as (u) set forth on Schedule 7.4(b) or solely with respect to any Excluded Liabilities, (v) requested by any Governmental Body, (w) required by any Requirements of Law, (x) contemplated by this Agreement (including the consummation of the Reorganization), (y) required pursuant to any Contract to which the Business is a party as of the date hereof, or (z) approved with the prior written consent of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed), Seller shall not, with respect prior to the Equity InterestsClosing, the Company or the Business, and Seller Parent shall cause the Company Group Companies not to:
(i) amend its articles acquire (by merger, consolidation, acquisition of incorporation stock or by-laws (assets or similar organizational documents);otherwise) any corporation, partnership or other business organization or division for total consideration in excess of $1,000,000.
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor Contract providing for capital expenditures, in any such case in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
120% (v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party excluding in connection with the consummation acquisition of the transactions contemplated by this Agreement or (Cnew business from DePuy Snythes) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were of the aggregate amount set forth in effect on the most recent capital budget for the Business provided to Buyer prior to the date hereof;
(viiii) sellmake, lease or agree to make, any payment or distribution of assets of the Business (as lessor), transfer or otherwise dispose of (including any transfers from the Company other than cash) to Seller Parent or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixiv) accelerate other than changes made (A) pursuant to any existing Employee Benefit Plan, (B) pursuant to this Agreement or delay collection (C) as required by any Requirements of Law, (i) increase or grant any increase in the compensation or benefits payable to any current or former employee, director or individual service provider of any notes or accounts receivable of the Group Companies whose annual base compensation is in advance excess of or beyond their regular due dates or the dates involving $100,000, other than annual increases in base pay and target bonus opportunities for 2020 of not more than $25,000 when 3% in the same would have been collected aggregate and increases in compensation in the ordinary course of the Business business consistent with past practice;
practices in connection with promotions to fill vacancies, (xii) delay increase the coverage or accelerate payment benefits available under any severance pay, termination pay, deferred compensation, bonus or any other incentive compensation plan or arrangement for any current or former employee, director or individual service provider of any account payable of the Group Companies, (iii) accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits previously granted to any current or former employee, director or individual service provider of any of the Group Companies under any Employee Benefit Plan or otherwise, (iv) enter into, adopt, amend or terminate any Employee Benefit Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other liability arrangement that would be an Employee Benefit Plan if it were in existence as of the Company beyond date of this Agreement, other than immaterial or in advance administrative amendments to broad-based Employee Benefit Plans covering similarly situated employees of Parent and its due date Subsidiaries, or the date involving more (v) other than $25,000 when such liability would have been paid in the ordinary course of business, (A) hire or engage any individual to be employed by or provide services to primarily to any of the Group Companies (other than for direct replacement hires or to fill open positions) or (B) terminate the employment or service of any Business consistent with past practiceEmployee (other than for cause or performance), in each of (A) and (B), whose annual base compensation is in excess of $200,000;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiiv) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvivi) originatesettle any material Proceeding, acquireexcept to the extent such settlement does not obligate the Business to (A) pay money following the Closing, hold(B) make any admission or finding of wrongdoing, sellor (C) restrict the conduct of the Business following the Closing;
(vii) forgive, transfercancel, securitize compromise, waive or hedge loans secured by real estate; provided thatrelease any debts, claims or rights in excess of $50,000 (other than, for the avoidance of doubt, “write-offs” of receivables for accounting purposes in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; orbusiness);
(xviiviii) make any material change loans or advances to, material guarantees for the benefit of, or any material investments in internal control over financial reportingany Persons;
(ix) enter into, amend or terminate any Business Agreement, other than renewals of any such Contracts on substantially the same terms as in effect prior to the expiration thereof;
(x) make or change required by GAAP any material Tax election inconsistent with past practice or change any change made by Seller method of accounting or accounting period for Tax purposes; file any amended Tax Returns or file any Tax Return in a manner inconsistent with past practice; sign or enter into any closing agreement or settlement agreement with respect to all any, or compromise any, claim or assessment of, Tax liability; surrender any right to claim a refund, offset or other reduction in liability of or for Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect to Taxes, except, in each case, in respect of a Consolidated Tax Group to the extent it does not affect any Group Company after the Closing Date;
(xi) other than in respect of the Reorganization, authorize for issuance, issue, deliver, sell, transfer or grant to any Person (other than to Parent or any of its Controlled AffiliatesSubsidiaries) (A) any equity or similar interests of any of the Group Companies, (B) any debt equity or other voting securities of any of the Group Companies or (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any equity or similar interests, voting securities or convertible or exchangeable securities of any of the Group Companies;
(xii) adopt a plan of complete or partial liquidation or dissolution, restructuring, recapitalization or reorganization of any Group Company or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or reorganization;
(xiii) acquire or sell any real property, or grant or accept or terminate any real property leases, subleases, licenses or other agreements allowing use of real property;
(xiv) agree to enter into any of the transactions set forth in the foregoing clauses.
(c) The Company Notwithstanding anything contained herein to the contrary, Parent shall keep all insurance policies set forth on Schedule 5.22be entitled to transfer any cash of the Group Companies to Parent or any of its Subsidiaries, via dividend or suitable replacements thereforotherwise, in full force at any time and effect through from time to time prior to the Closing DateClosing.
Appears in 1 contract
Sources: Equity Purchase Agreement (RTI Surgical Holdings, Inc.)
Operations Prior to the Closing Date. (a) Except Each of the Companies shall, and shall cause the other Acquired Companies to, (i) operate and carry on the Acquired Companies’ business in the ordinary course consistent with past practice and substantially as operated immediately prior to the date of this Agreement and (ii) use commercially reasonable efforts to maintain and preserve intact its business organization, insurance coverage, business relationships and the goodwill of Governmental Bodies and those having business relationships with it (including employees, customers, vendors, suppliers, brokers and other Persons), protect and preserve the scope, breadth and value of its assets and properties (including Intellectual Property) and retain the services of its present officers and key employees.
(b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer7.4, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller (I) the Sellers shall not sell, assign, transfer or otherwise dispose of, or create any Encumbrance on, the Shares, Options and Warrants and (II) the Companies shall not, with respect to and shall cause the Equity Interests, the Company or the Businessother Acquired Companies not to, and Seller the Sellers shall cause each of the Company not Acquired Companies to, other than in the ordinary course of business:
(i) amend declare or pay any dividend or make any other distribution on its articles of incorporation capital stock or by-laws (or similar organizational documents)Equity Interests to the Sellers;
(ii) issuesplit, grant, sell combine or encumber reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of, or redeem or repurchase, any shares of capital stock or other securitiesEquity Interest or make any other actual, constructive or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right deemed distribution in respect of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyEquity Interest;
(iii) make any material change in the Business or the operations lines of business of the Company outside the ordinary course Acquired Companies, except such changes as may be required to comply with any applicable Requirements of businessLaw;
(iv) make acquire, sell, lease or dispose of any capital expenditure property, business or investment or any assets, except for acquisitions, sales, leases or dispositions that are less than $250,000 individually or $1,500,000 in the aggregate;
(v) sell, lease, license, encumber, divest, cancel, abandon or allow to lapse or expire, or otherwise transfer or dispose of any Intellectual Property that is material to the business of any Acquired Company;
(vi) enter into, terminate, materially adversely modify, amend or exercise any option to extend a Lease Agreement;
(vii) enter into any contract Contract for the purchase of real property;
(viii) enter into, amend, cancel or commitment therefor modify any Contract that contains any exclusivity, non-compete or most-favored nations provisions in excess favor of the counterparty thereto (such Contract, a “Prohibited Contract”);
(ix) create, incur, assume or otherwise become liable, or agree to create, incur, assume or otherwise become liable, with respect to any Indebtedness, or grant any Encumbrance with respect to the assets of any of the Acquired Companies other than Indebtedness incurred in the ordinary course of business not to exceed $50,000; provided that1,500,000;
(x) cancel any debts or waive any claims or rights of value (including the cancellation, compromise, release or assignment of any Indebtedness owed to, or claims held by, it), except for cancellations made or waivers granted with respect to claims other than Indebtedness in the ordinary course of business consistent with past practicepractice which, in the Company may originate loans secured by 1-to-4 family residential real estate aggregate, are not material or for claims other than Indebtedness which are cancelled or waived in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf connection with the settlement of the Company or transfer any loans secured by real estate actions referred to the Companyin this clause (x);
(vI) accelerate the delivery or sale of products or services or the collection of accounts receivable, (II) delay payment of accounts payable or the making of capital expenditures or (III) offer discounts on sale of products or services or premiums on purchase of supplies;
(xii) make any capital expenditures or commitments therefor in excess of 120% of the capital expenditures budget approved by the boards of directors of the Companies, which capital expenditures budget is set forth on Schedule 7.4(b)(xii);
(xiii) (A) grant, increase or accelerate the vesting or time of payment of the compensation or benefits (including severance, retention or bonuses) available to any employee of the Acquired Companies, other than as required by the terms of any Plan or Contract in effect as of the date of this Agreement or to comply with Requirements of Law, (B) grant any new equity-based awards or take any action to accelerate the vesting or payment of any outstanding equity-based awards or (C) enter into or forgive any loan to any employee, director or independent contractor;
(A) terminate the employment of any employee other than for cause, (B) hire any employee except for the hire of new employees to fill the positions of employees who terminate employment after the date of this Agreement or to fill the open positions set forth on Schedule 7.4(b)(xiv), in each case for compensation commensurate with the position or (C) enter into any collective bargaining agreement or agreement with a trade union;
(xv) establish, adopt, amend or terminate any Plan, except as required to comply with Requirements of Law or except as reasonably determined by the Companies to avoid making any payment that, on its own or in the aggregate with other payments, could constitute a “parachute payment” under Section 280G of the Code and regulations promulgated thereunder;
(xvi) acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) enter, renew, terminate, materially adversely modify or amend, or grant any release or relinquishment of any material right under any Material Contract which (including any Intellectual Property Contract) or enter any contract that would have been a Company Agreement Material Contract if in effect on the date hereof, of this Agreement;
(Bxix) enter into make any Contract which would require change in the consent of a third party in connection with the consummation accounting methods or policies of the transactions contemplated Acquired Companies, unless such change is required by this Agreement GAAP;
(xx) fail to maintain in full force and effect its insurance policies over its properties, Assets and businesses in a form and amount consistent with past practices;
(xxi) issue, deliver or sell any securities of any of the Acquired Companies, other than the issuance of any securities to any of the other Acquired Companies;
(Cxxii) modifymake, amend, terminate or grant change any consent material Tax election or waiver under method of Tax accounting or take any Company Agreement material position on any material Tax Return filed on or any Contract that would have been a Company Agreement if it were in effect on after the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method therefor that is inconsistent with elections made, positions taken, elections made taken or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date)periods, or (B) settle or otherwise compromise any claim related to Taxes, material Tax liability;
(xxiii) enter into any closing agreement settlement or similar agreement related to Taxescompromise of any Proceeding if such settlement or compromise would involve the payment of more than $250,000, otherwise settle the admission of wrongdoing or culpability by any dispute relating to Taxes, of the Acquired Companies or request the imposition of any ruling or similar guidance with respect to Taxesnon-monetary restrictions upon any Acquired Company;
(xvxxiv) make enter into, amend, modify or terminate any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAPRelated Party Contract;
(xvixxv) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in amend the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf Organizational Documents of the Company or transfer any loans secured by real estate to the CompanyAcquired Companies; or
(xviixxvi) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Subject to Section 6.4(b) hereof, Holdings and the written approval of Buyer, which Buyer agrees Company shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business their businesses only in the ordinary course course, except as otherwise expressly contemplated by this Agreement. In furtherance and substantially as presently operated. Consistent with not in limitation of the foregoing, Seller shall cause Holdings and the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to (i) keep and maintain their respective assets and properties in normal operating condition and repair, (ii) maintain the business organization of Holdings and the Company intact and (iii) preserve the goodwill of the suppliers, employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingthem.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with Agreement, neither Holdings nor the Company shall without the express prior written approval of Buyer Purchaser (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:withheld):
(i) amend its articles of incorporation organization or by-laws (bylaws or similar organizational documents)the Certificate of Designations;
(ii) issue, grant, sell issue or encumber agree to issue any shares of its capital stock (by the issuance or granting of options, warrants or rights to purchase any shares of capital stock), or any securities exercisable or exchangeable for or convertible into such capital stock, or other securities, except in connection with the exercise of Holdings Options granted prior to the date hereof pursuant to the Holdings Option Plan;
(iii) split, combine or reclassify any shares of capital stock or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares, except for the payment by the Company to Holdings of such dividends or the making of such other distributions by the Company to Holdings that are consistent with past practice;
(iv) issue, granttransfer, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of deliver any shares of its capital stock (or securities convertible into or exchangeable or exercisable for, with or without additional consideration, such capital stock) or any other interest therein, except (A) in connection with exercise of Holdings Options granted prior to the date hereof pursuant to the Holdings Option Plan and (B) in connection with the reallocation of Holdings Options, surrendered after the date hereof and prior to the Closing, or repurchased Shares, as determined by the Board of Directors of Holdings, not to exceed the amounts set forth in Section 3.2(b) hereof in either case;
(v) redeem, purchase or otherwise acquire for any consideration (A) any outstanding shares of its capital stock or securities carrying the right to acquire, or which are convertible into or exchangeable or exercisable for, with or without additional consideration, such capital stock, (B) any other securities of Holdings or make the Company, or (C) any other changes interest in any of the equity capital structure foregoing, except as contemplated by this Agreement and the redemption or repurchase of shares of Class C Stock from employees of Holdings or the Company in connection with the termination of such employee's employment with Holdings or the Company;
(iiivi) make incur any change indebtedness for borrowed money, except (A) borrowings in the Business or the operations of the Company outside the ordinary course of business;
business consistent with past practice under the Senior Credit Agreement and (ivB) make any capital expenditure or enter into any contract or commitment therefor other borrowings not in excess of $50,000; provided that500,000;
(vii) make any acquisition or disposition of stock or other securities or assets of any person outside of the ordinary course of business in excess of $250,000, excluding all purchases of inventory and equipment in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, capital expenditures materially in excess of those contemplated by the Company's spending plan attached as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13Schedule 6.4(b)(viii), other than in the ordinary course of business;
(ix) accelerate merge or delay collection of consolidate with any notes corporation or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practiceother entity;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement employment or similar agreement related to Taxes, otherwise settle any dispute relating to Taxescontract with, or request materially increase the compensation payable to, any ruling officer, director or similar guidance with respect to Taxes;
(xv) make any change employee, except increases in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, non-executive officer compensation in the ordinary course of business consistent with past practice;
(xi) alter in any material respect its practices and policies relating to the payment and collection, as the Company case may originate loans secured be, of accounts payable and accounts receivable;
(xii) except as contemplated by 1-to-4 family residential real estate or described in an aggregate principal amount this Agreement, adopt, amend in any material respect or terminate any Employee Plan, severance plan or collective bargaining agreement or make awards or distributions under any Employee Plan, except awards or distributions to any participant or employee other than directors and executive officers in the ordinary course consistent with past practice;
(xiii) create, assume or suffer to be incurred any Encumbrance of any kind on any of its properties or assets other than (A) Encumbrances in the ordinary course of business consistent with past practices, as long as the creation, assumption or sufferance thereof does not to exceed $2,000,000 per month; provided further that Seller shall not originate interfere with, hinder or delay the transactions contemplated hereby and (B) Permitted Encumbrances;
(xiv) amend, supplement or modify any loans secured by real estate material contract except in the ordinary course of business;
(xv) settle or compromise any claims, actions, proceedings or litigation involving material liability for money damages or placing any restrictions on behalf the operations of the Company Company's businesses; or transfer waive, release or assign any loans secured by real estate to material rights or claims under any material contracts outside of the Companyordinary course of business consistent with past practice;
(xvi) make any material Tax election or make any material change in its insurance coverages; or
(xvii) make agree, commit or resolve to do or authorize any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 7.5 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Company and the Subsidiaries to operate and shall use its reasonable efforts to cause the Company to carry on the their Business only in the ordinary course Ordinary Course of Business and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall cause the Company and the Subsidiaries to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewithCompany and the Subsidiaries.
(b) Notwithstanding Section 7.5(a), except as set forth in Schedule 7.5, as contemplated by this Agreement or with the written consent of Buyer (any request for which Buyer will consider in good faith), Seller shall not, and shall not permit the Company to, with respect to any employee of and the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not Subsidiaries to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer transfer, assign or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of its assets, tangible or intangible, except for (Ai) the Equity Interests assets sold or (B) the assets or properties otherwise disposed of the Company, other than, in the case Ordinary Course of this clause Business for fair consideration and (B), ii) Permitted Encumbrances;
(viiii) cancel cancel, compromise, waive or release any debts owed to or rights or claims held by the Company it (including the settlement of any claims or litigation) other than in outside the ordinary course Ordinary Course of the Business consistent with past practiceBusiness;
(viiiiii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations obligation (as defined in Statement of Financial Accounting Standards No. 13)) or any voluntary purchase, cancellation, prepayment or complete or partial discharge in advance of a scheduled payment date with respect to, or waiver of any right under, any Indebtedness of or owing to the Company or the Subsidiaries;
(iv) except (i) as set forth in Schedule 7.5(b)(iv) or (ii) for any compensation and employment practices applied generally for Aon, institute any increase in any benefit provided under any Company Plan, other than in the ordinary course Ordinary Course of businessBusiness;
(ixv) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and or cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiivi) make any material increase change in the compensation of the employees of the Companytheir employees, other than changes made in accordance with normal compensation practices or pursuant to existing commitments under plans or arrangements disclosed on Schedules 5.15 or 5.17 and consistent with past compensation practices, including any (i) increase in the cash compensation payable or to become payable to or for the benefit of any such employees; (ii) increase in the security or tenure of employment; or (iii) increase in the amount payable to any such employees upon the termination of their employment, in each case, except for any compensation and employment practices applied generally for Aon;
(Avii) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, enter into or adopt any method that is inconsistent with positions takenemployment, elections made consulting, severance, or methods used change in preparing control agreement, any Company Plan or filing similar Tax Returns any collective bargaining agreement (other than ordinary course at-will employment arrangements not providing for any severance or change in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Datecontrol payments), or (B) settle modify in any material respect the terms of any existing such contract, plan or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxesagreement, or request grant any ruling rights to severance, termination or similar guidance change in control payments, other than with respect to Taxesemployees who are not officers, executives or key employees, other than in the Ordinary Course of Business;
(xvviii) make any change in their charters or by-laws or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock);
(ix) make, or agree to make, (i) any acquisition, disposition, lease, transfer or assignment of any material assets or properties used or held for use in the conduct of the Business, or (ii) any creation or incurrence of any Encumbrance, other than a Permitted Encumbrance, on any of such assets or properties,
(x) make any change in (i) the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Pro Forma Financial Statements, unless such change is was required by GAAP, (ii) any accounting, financial reporting or allowance related practice or policy of the Business or (iii) any method of calculating any bad debt, contingency or other reserve of the Business for accounting, or financial reporting related purposes;
(xi) make or change any material Tax election; change any annual Tax accounting period; adopt or change any material method of Tax accounting; amend any material Tax Returns or file any material claims for Tax refunds; enter into any closing agreement, Tax allocation agreement, Tax sharing agreement or material Tax indemnity agreement; settle or compromise any material Tax claim, audit, notice or assessment; extend or waive any statute of limitations period applicable to any material Tax claim or assessment or any right to claim a material Tax refund; or surrender any offset or other reduction in Tax liability, in each case specific to or affecting the Company or any Subsidiary;
(xii) enter into any transaction with any officer, director or Affiliate of Seller or any Affiliate of any such officer, director or Affiliate, except in the Ordinary Course of Business;
(xiii) enter into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, or licenses) outside the Ordinary Course of Business;
(xiv) make any investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related investments, loans, or acquisitions) outside the Ordinary Course of Business;
(xv) accelerate, terminate, modify, or cancel any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business;
(xvi) originate, acquire, hold, sell, make any capital expenditure (or series of related capital expenditures) outside the Ordinary Course of Business;
(xvii) transfer, securitize assign, or hedge loans secured by real estate; provided that, grant any license or sublicense of any rights under or with respect to any Intellectual Property other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness;
(xviii) cause any employee to suffer an “employee loss” (as that term is defined in WARN); or engage in a “layoff”, the Company may originate loans secured by 1-to-4 family residential real estate “mass layoff”, “termination” or “relocation” (as those terms are defined in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyCalifornia Labor Code Section 1400); or
(xviixix) make enter into any material change agreement, whether oral or written, by the Company or the Subsidiary to do any of the things described in internal control over financial reporting, the preceding clauses (i) through (xviii) other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesas expressly provided for herein.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company Seller intact and to preserve the goodwill of the suppliers, customers, licensors, employees, brokers, lenders and others having business relations with the CompanySeller. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iiiii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSeller.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate 15,000 for any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyone item;
(v) (Aii) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement if required to be set forth in effect on the date hereof, Schedule 5.18;
(Biii) enter into any Contract which would require contract for the consent purchase or lease of a third party in connection with real property to be used for the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofBusiness;
(viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viiv) cancel any debts owed to or claims held by the Company Seller (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivi) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xvii) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xiviii) except as expressly contemplated by Section 7.9allow the levels of raw materials, makesupplies, or agree to make, any distribution work-in- process or other disposition of assets (other than cash and cash equivalents) material included in inventory to Seller or vary in any of its Affiliatesmaterial respect from the levels customarily maintained in the Business;
(xiiix) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;Seller's employees; or
(xiiix) make any material increase change in the compensation of the employees of the CompanySeller's employees, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Diversified Food Group Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Aon shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate (and shall cause the other Sellers to) use its all reasonable efforts to cause the Company Companies (in respect of the Warranty Business) to operate and carry on the Business only their business in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement, except as specifically contemplated by this Agreement. Consistent with the foregoing, Seller Aon shall (and shall cause the Company to keep and maintain other Sellers to) cause the material assets Companies (in respect of the Company in good operating condition and repair and shall Warranty Business) to use its their reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingCompanies.
(b) In addition, and without Without limiting Section 7.4(a), except as expressly set forth in Schedule 7.4, except as specifically contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not not, other than with respect to clauses (v)(A) and (xviii) below, be unreasonably withheld or delayed), Seller Aon shall not, with respect to the Equity Interests, the Company or the Business, (and Seller shall cause the Company other Sellers to) cause the Companies (in respect of the Warranty Business) not to:
(i) amend its articles make any material change in their business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor which is in excess of $50,000; 250,000 unless such expenditure is provided that, for in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not capital expenditure budget for 2006 made available to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate Buyer prior to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party and Aon shall have notified Buyer in connection with the consummation writing of the transactions contemplated by this Agreement making of any such capital expenditure (or (Ccontract or commitment) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofexcess of $250,000 substantially concurrently therewith;
(viiii) purchase or sell any real property;
(iv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Companytheir assets, other than, than inventory and personal property sold or otherwise disposed of in the case ordinary course of this clause (B), business consistent with past practices and other than Permitted Encumbrances;
(viiv) acquire (A) by merger or consolidation with, or by the purchase of all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof (other than Investment Assets in the ordinary course) or (B) any assets that are material, in the aggregate, to the Companies, taken as a whole, except in the case of (B) for purchases of assets in the ordinary course of business consistent with past practice (in transactions not otherwise subject to subparagraph (A) of this Section 7.4(a)(v));
(vi) cancel any debts Indebtedness owed to or claims held by the Company them (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent business or in accordance with past practiceSection 7.5;
(viiivii) create, incur or assume, or agree to create, incur or assume, any Indebtedness other than any Indebtedness that is subject to Section 7.5 or which constitutes the deferred purchase price of capital expenditures permitted by Section 7.4(b)(ii) above;
(viii) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of the their outstanding equity interests (except dividends and distributions by one Company solely to one or more Companies and dividends or distributions of cash and/or cash equivalents and/or Investment Assets made prior to Closing);
(ix) split, combine or reclassify any of their equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for their equity interests;
(x) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber, or redeem, purchase or otherwise acquire or grant negotiation rights with respect to, any of their equity interests, or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such equity interests;
(xi) hire any new employee with expected total compensation during any fiscal year in excess of $250,000 or with an annual base salary in excess of $150,000, promote any employee to be an officer or member of senior management, or engage any consultant or independent contractor for a period exceeding 30 days unless such engagement may be cancelled without penalty upon not more than 30 days’ notice or the expected total annual compensation will not exceed $250,000;
(xii) increase in any manner the compensation of, or pay any bonus to, any employee, officer or director, except for increases in the ordinary course of business consistent with past compensation practices (which increases may not, in the case of any employee whose compensation exceeded $250,000 during the twelve months ended December 31, 2005 or whose annual base salary exceeds $150,000 as of the date hereof, in any calendar year exceed the increase in the CPI on a specified date in such calendar year over the CPI on the same date in the prior calendar year) and increases required under any existing Business Agreement;
(xiii) adopt or enter intointo any collective bargaining agreement or other labor union contract applicable to their employees;
(xiv) adopt, modify or increase the benefits to any employees of the Companies under, or accelerate or settle the payment of benefits to any employees of the Companies under, any Company Plan, except, (A) in each case, as lesseerequired under Requirements of Law or by existing contractual arrangements, (B) as a result of a modification or increase in benefits under an existing Company Plan that is generally applicable to Aon employees or (C) as a result of the adoption of a Company Plan that is generally applicable to Aon employees from which the employees of the Companies may not excluded under applicable Requirements of Law;
(xv) make any capitalized lease obligations material change outside of the ordinary course of business to (A) any pricing, investment, accounting, financial reporting, credit, reserving, hedging, underwriting, claims administration or allowance practice or policy, (B) any method of calculating any reserve for accounting, financial reporting or Tax purposes, (C) the fiscal year or (D) any existing credit, billing, collection and payment policies, except in each case as defined required by changes in Statement GAAP, SAP or applicable Requirements of Financial Accounting Standards No. 13Law;
(xvi) make or rescind any Tax election, settle or compromise any material Tax liability, amend any Tax return, file any Tax-related ruling request, change its Tax accounting, or file any Tax Return not consistent with historical practice;
(xvii) make any change in their Organizational Documents;
(xviii) create any new subsidiary or enter into any joint venture or partnership or other similar agreement or arrangement (excluding agreements or arrangements with clients in the ordinary course of business as described in Schedule 5.14);
(xix) modify, other than amend, cancel, terminate or waive any material rights under any Business Agreement, except in the ordinary course of business;
(ixxx) accelerate settle or delay collection of compromise any notes claim against the Companies (whether or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or not commenced prior to the Closing Date as a result date of this Agreement Agreement) by any Administrative Authority or other Person that could reasonably be expected to materially impair the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending Warranty Business after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyClosing; or
(xviixxi) make authorize any material change of, or commit or agree, in internal control over financial reportingwriting or otherwise, other than to take any change required by GAAP of, the foregoing actions or any change made by Seller with respect to all action which would materially impair or prevent the satisfaction of its Controlled Affiliatesany conditions in Article VII hereof.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Aon Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or below, as otherwise contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to during the Equity InterestsPre-Closing Period, the Company or shall (a) conduct its business only in the BusinessOrdinary Course of Business and (b) use commercially reasonable efforts to (i) keep available the services of the current officers, key employees and Seller cause consultants of the Company, (ii) preserve the current relationships of the Company with such of the clients, suppliers, licensors, licensees, distributors, customers, landlords, employees, agents and other Persons with which the Company has significant business relations and (iii) preserve substantially intact its business organization. Without limiting the generality of the foregoing, except as set forth below, as otherwise contemplated by this Agreement or with the approval of Buyer (which shall not tobe unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not:
(i) amend or otherwise change its articles of incorporation or by-laws (or similar organizational documents)bylaws;
(ii) issue, grantsell, sell or encumber any shares of its capital stock or other securitiespledge, or issuedispose of, grant, sell transfer, encumber, or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for authorize the acquisition, issuance, sale, pledge pledge, disposition, grant, transfer or other disposition of encumbrance of, any shares of its capital stock or other securities or make any other changes Equity Interests in the equity capital structure of the CompanyCompany (including any such interest represented by Contract right);
(iii) declare, set aside, make or pay any change in the Business dividend or the operations other distribution (other than (A) tax distributions consistent with past practices of the Company outside to enable Sellers to pay estimated Taxes and (B) other dividends payable in cash that will not result in the ordinary course Closing Net Asset Value being less than the Reference Net Asset Value and with respect to which the Company has provided Buyer with prior notice) with respect to any of businessits Equity Interests or enter into any agreement with respect to its Equity Interests;
(iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests;
(A) acquire (including by merger, consolidation or acquisition of stock or assets) any Equity Interests in any Person or any division thereof or any assets, other than in the Ordinary Course of Business, (B) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than in the Ordinary Course of Business, or (C) enter into or amend any Contract or other arrangement that, if fully performed, would not be permitted under this Section 5.3;
(vi) defer the payment of any expenses beyond the date such expenses are due except in the Ordinary Course of Business;
(vii) make any single capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company150,000;
(v) (Aviii) enter into or amend any Contract which would have been contract for the purchase or lease (as lessor or lessee) of real property or exercise any option to extend a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofLease;
(viix) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or license, mortgage or pledge, pledge or impose or suffer to be imposed any Encumbrance (other than Permitted Encumbrances or Encumbrances that will be released on or before the Closing Date) on, any of (A) its assets, in whole or in part, other than sales of inventory in the Equity Interests Ordinary Course of Business, personal property sold or (B) otherwise disposed of in the assets Ordinary Course of Business that is obsolete or properties is not material to its business and dividends of cash to Sellers in respect of the Company, other than, Shares that will not result in the case of this clause (B), Permitted EncumbrancesClosing Net Asset Value being less than the Reference Net Asset Value and with respect to which the Company has provided Buyer with prior written notice;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiix) create, incur or incur, assume, or agree to create, incur incur, or assumeassume or guarantee, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), for Borrowed Money other than money borrowed or advanced in the ordinary course Ordinary Course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceBusiness;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase change in the compensation of the employees of or consultants to the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practicespractices of the Company or changes required by employment agreements identified on Schedule 3.18(a)(i) or by any Law, or otherwise change, alter or enter into any employment agreement or consulting arrangement other than in the Ordinary Course of Business;
(xii) hire any new employees, agents or consultants except to replace existing employees, agents or consultants at similar compensation levels and except for any new employees hired in the Ordinary Course of Business;
(xiii) (A) establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, equity incentive, option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant, except as to the extent required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), ; or (B) settle take any affirmative action to amend or otherwise compromise waive any claim related to Taxesperformance or vesting criteria or accelerate vesting, enter into exercisability, timing of payment or funding under any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to TaxesCompany Plan;
(xvxiv) make any material change in the accounting principles, methods, practices or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvixv) originatewaive, acquirerelease, holdassign, sellsettle or compromise any debt owed to the Company by any Person or any claims, transfer, securitize or hedge loans secured by real estate; provided thatother than adjustments made to Contracts with the Company’s clients in the Ordinary Course of Business that are, in the ordinary course aggregate, not material to the Company, or any material Actions;
(xvi) other than with respect to any Contract that has already been identified to Buyer or about which Sellers’ Representative has notified Buyer prior to the date hereof, (A) enter into any Contract that would be included in the definition of business consistent with past practiceCompany Material Contract or make any material modification to any existing Company Material Contract, in each case other than any Contracts or extensions that (1) have a term of one year or less, or (2) involve $150,000 or less, or are entered into or modified in the Ordinary Course of Business, or (B) enter into or make a Bid for any material Government Contract or firm fixed price Government Contract having expected profit margins that are less than 15%;
(xvii) loan or advance any amount to, or enter into any Contract with, or otherwise engage in any transaction with, any director, officer or holder of an Equity Interest in the Company may originate loans secured by 1or any of their respective Affiliates, except for payment of salary or expenses, advancement to directors, officers or employees in the Ordinary Course of Business and cash dividends to Sellers;
(xviii) make or change any Tax election, adopt or change any accounting method in respect of Taxes, file any Tax Return or an amendment to a Tax Return other than the Company’s corporate Income Tax Returns for all Pre-to-4 family residential real estate Closing Tax Periods, enter into any closing agreement, settle any claim or assessment in an aggregate principal amount not respect of Taxes, or consent to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes if such election, adoption, change, amendment, agreement, settlement, consent or other action would have the effect of increasing the Tax liability of the Company or transfer for any loans secured by real estate to period ending after the CompanyClosing Date, except in the Ordinary Course of Business; or
(xviixix) make revoke the Company’s election to be taxed as an S Corporation or allow any material change in internal control over financial reporting, action other than any change required by GAAP or any change made by Seller with respect the sale of the Shares pursuant to all this Agreement that would result in the termination of its Controlled Affiliatesthe Company’s status as a validly electing S Corporation.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 otherwise permitted or as contemplated required by the terms hereof, including Section 6.4 to the Company Disclosure Schedule, from the date hereof until the earlier of the Effective Time or the termination of this Agreement or except with Agreement, the written approval of Buyer, which Buyer agrees Company shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use cause each Subsidiary to (i) operate its reasonable efforts to cause the Company to carry on the Business business in all material respects only in the ordinary course consistent with past practice, (ii) use reasonable efforts to preserve intact its present business organization, and substantially as presently operated. Consistent preserve its relationships with the foregoingcurrent suppliers, Seller shall cause the Company distributors, customers and others having currently significant business dealings with it, and (iii) use reasonable efforts to keep and maintain the material assets used in the ordinary course of the businesses of the Company in good operating condition and repair and shall use or its reasonable best efforts Subsidiaries consistent with good business practice to maintain the business organization past practice, reasonable wear and tear and damage by fire or other casualty excepted.
(b) Notwithstanding Section 6.4(a), except as contemplated by this Agreement, including Section 6.4 of the Company intact and preserve Disclosure Schedule or as set forth in the goodwill Filed SEC Reports, from the date hereof until the earlier of the employeesEffective Time or the termination of this Agreement, brokers, lenders and others having business relations with the Company. In connection therewith, Seller Company shall not, and shall not permit the Company cause or allow any Subsidiary to, with respect to any employee of without the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval prior consent of Buyer (which Buyer agrees consent shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:):
(i) amend its articles of incorporation charter or by-laws (or similar organizational documents)bylaws;
(ii) issueissue or agree to issue (by the issuance or granting of options, grantwarrants or rights to purchase Company Common Stock or Preferred Stock or otherwise), transfer, sell or encumber deliver any shares of its capital stock Company Common Stock or other securitiesPreferred Stock, any securities exchangeable for or convertible into Company Common Stock or Preferred Stock, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure securities of the CompanyCompany or any Subsidiary;
(iii) split, combine or reclassify any shares of Company Common Stock or Preferred Stock or declare, set aside or pay any dividends or make any change other distributions (whether in the Business cash, stock or the operations other property) in respect of the Company outside Common Stock or the ordinary course of businessPreferred Stock;
(iv) make redeem, purchase or otherwise acquire for any capital expenditure consideration any outstanding shares of Company Common Stock or enter Preferred Stock or securities carrying the right to acquire, or which are convertible into any contract or commitment therefor in excess exchangeable or exercisable therefor, with or without additional consideration, except repurchases by the Company of $50,000; provided that, shares of Company Common Stock from employees of the Company upon termination of such employees' employment as contemplated by the Stockholders' Agreement;
(v) except in the ordinary course of business consistent with past practiceor under the Credit Agreement or the Loan Agreement, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate incur any loans secured by real estate on behalf indebtedness for borrowed money or amend, supplement or otherwise modify any of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation terms of the transactions contemplated by this Credit Agreement or (C) modifythe Loan Agreement, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofother material instrument or agreement evidencing indebtedness for borrowed money;
(vi) sell, lease (as lessor), transfer make any acquisition or otherwise dispose disposition of (including any transfers from the Company to Seller stock or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, entity not in the ordinary course of business consistent and in excess of $1 million;
(vii) make any Capital Expenditure, or series of related Capital Expenditures, not otherwise provided for in the Company's budget or in connection with past practice, the projects referenced in the Company may originate loans secured by 1-to-4 family residential real estate Disclosure Schedule, which Capital Expenditure, or series of related Capital Expenditures, is in an aggregate principal amount not excess of $1 million in the aggregate;
(viii) merge or consolidate with any corporation or other entity, other than, with respect to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to wholly owned Subsidiary, with another wholly owned Subsidiary or the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.;
Appears in 1 contract
Sources: Merger Agreement (Blue Bird Body Co)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its commercially reasonable efforts to, and to cause its Affiliates to, operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair use its commercially reasonable efforts to, and shall cause its Affiliates to, use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to, preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly set forth in Schedule 7.4 of the Seller Disclosure Schedule, except as contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, and shall cause its Affiliates not to, with respect to the Equity Interests, Business and the Company or conduct and occupancy of the Business, and Seller cause the Company not toStores:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside the ordinary course Business, except such changes as may be required to comply with any applicable Requirements of businessLaw;
(ivii) purchase or otherwise acquire any assets or make any capital expenditure expenditures, in each case that are material, individually or enter into any contract or commitment therefor in excess the aggregate, to the Business (other than (A) purchases of $50,000; provided that, inventory in the ordinary course of business consistent with past practice, (B) capital expenditures contemplated by the Company may originate loans secured fiscal 2006 capital budget for the Business made available to Buyer, (C) capital expenditures required under any Real Estate Agreement or Lease Agreement for capital improvements that are not controlled exclusively by 1-to-4 family residential real estate in an aggregate principal amount Seller or its Affiliates, (D) capital expenditures required by any Governmental Body and (E) such capital expenditures not to covered by clauses (A) through (D) above that do not exceed $2,000,000 per month; provided further that Seller shall not originate 10,000 in the aggregate);
(iii) exercise any loans secured by real estate option to extend a lease listed on behalf Schedule 5.7(a)(i);
(iv) grant any Encumbrance with respect to any assets of the Company or transfer any loans secured by real estate to the CompanyBusiness, in each case other than Permitted Encumbrances and Permitted Real Property Exceptions;
(v) (A) enter into transfer any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of material assets (other than cash and cash equivalentsin excess of that required by Section 2.1(a)(xiv) prior to Seller the Effective Time) of the Business to any other part of the Parisian Business or any of its Affiliatesother Person;
(xiivi) institute any material increase in the benefits available under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees any Store Employees, other than as expressly required by the terms of any such plan as in effect on the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result date of this Agreement or the transactions contemplated herebyRequirements of Law;
(xiiivii) make grant to any Store Employee any material increase in compensation or other benefits (excluding any retention agreements that do not involve payments by Buyer to any such Store Employee after the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(AClosing) except as may be required by applicable Requirements of Law, prepare under existing agreements or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice;
(viii) enter into or amend any collective bargaining agreement;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the Company may originate loans secured stock or assets of, any business or any corporation, partnership, association or other business organization or division thereof (other than Seller's purchase of the stock of the Companies and the subsequent merger of one or more of the Companies with and into Seller);
(x) sell or otherwise dispose of any assets (including any transfer or other disposition of assets to any other portions of the Parisian Business) that are material, either individually or in the aggregate, to the Business (other than sales of inventory in the ordinary course of business consistent with past practice);
(xi) materially adversely modify or amend any Business Agreement (other than the ▇▇▇▇▇▇▇▇▇ Creek Amendment);
(xii) intentionally waive in writing any right of any material value of or with respect to the Business;
(xiii) enter into any material agreement, contract or arrangement with any of its Affiliates relating to the Business (other than the ▇▇▇▇▇▇▇▇▇ Creek Amendment) unless such agreement terminates as of the Closing Date;
(xiv) create any new gift certificate, gift card, merchandise voucher, coupon or refund program for the Business or amend in any material respect the Seller Gift Programs, in each case, other than in the ordinary course of business consistent with past practice;
(xv) create any new return policy for merchandise purchased from the Business or amend in any material respect the Seller Return Policies;
(xvi) except as permitted by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured Schedule 7.4(b)(xvi) or as permitted by real estate the Private Brands Agreement, on behalf of the Company Business (A) place any orders (other than fill-in or transfer replenishment orders) for products bearing a Private Brand (as defined in the Private Brands Agreement) or (B) place any loans secured by real estate to fill-in or replenishment orders for products bearing a Private Brand (as defined in the CompanyPrivate Brands Agreement); or
(xvii) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company Without the prior written consent of Buyer, which consent will not be unreasonably withheld, Seller shall keep all insurance policies set forth not amend, supplement or otherwise modify the Stock Purchase Agreement in any manner that would reasonably be expected to have an adverse effect on Schedule 5.22the Business, the Assets or suitable replacements therefor, in full force and effect through the Closing DateAssumed Liabilities.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Quixote and DMI shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operatedcurrently operated and conducted. Consistent with On a reasonable and timely basis, Quixote and DMI shall inform Parent of the foregoinggeneral status of the condition and operations of the Business. In furtherance thereof, Seller Quixote and DMI shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its reasonable their best efforts efforts, consistent with good sound business practice practice, to maintain the business organization of the Company Business intact and to preserve and enhance the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, Seller Neither Quixote nor DMI shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from the Business any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iii) otherwise attempt to persuade any such employee Person to terminate his his, her or her its relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated permitted by this Agreement or except with the express written approval of Buyer Parent (which Buyer agrees shall not be unreasonably withheld or delayedwithheld), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
neither Quixote nor DMI shall: (i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or in the operations operation of the Company outside the ordinary course of business;
(iv) Business or make or contract or commit to make any capital expenditure expenditure, whether or not contemplated by the budget set forth on Schedule 5.26, in respect of the Business which shall, in any one case, exceed $25,000; (ii) enter into any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided thatcommitment, including any purchase order not in the ordinary course of business consistent with past practicepractice or containing a "most favored nation" pricing provision, as such term is commonly understood in the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company optical disc industry, or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement required to be set forth on A-31 Schedule 5.20 if in effect on the date hereof, hereof or enter into any contract which cannot be assigned to Cinram or a permitted assignee of Cinram under Section 13.5 or 13.16; (Biii) enter into any Contract which would require contract for the consent purchase of a third party in connection with real property to be used by the consummation Business or for the sale of the transactions contemplated by this Agreement any Owned Real Property or (C) modify, amend, terminate or grant exercise any consent or waiver under any Company Agreement option to purchase real property listed on Schedule 5.10 or any Contract that would have been option to extend a Company Agreement if it were in effect lease listed on the date hereof;
Schedule 5.11; (viiv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers transfer (except a Permissible Payment) from the Company Business to Seller Quixote or any of its Affiliates), or mortgage or mortgage, pledge, or impose or suffer to be imposed any Encumbrance (other than Permitted Encumbrances) on, any of (A) the Equity Interests or (B) the assets acquired for the Business, except for inventory and other insignificant items of personal property sold or properties otherwise disposed of for fair value in the ordinary course of the Company, other than, in the case of this clause business consistent with past practice; (B), Permitted Encumbrances;
(viiv) cancel any debts owed to or claims held by for the Company benefit of the Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business business consistent with past practice;
; (viiivi) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money in respect of the Business, or enter into, as lessee, any capitalized lease obligations obligation (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
; (ixvii) accelerate or delay collection of any notes note or accounts account receivable generated by the Business in advance of or beyond their its regular due dates date or the dates involving more than $25,000 date when the same would have been collected in the ordinary course of the Business business consistent with past practice;
; (xviii) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability the same would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice; (ix) allow the levels of raw materials, supplies, work-in-process or other materials included in the Company may originate loans secured by 1-to-4 family residential real estate inventory of the Business to vary in any material respect from the levels customarily maintained in the Business; (x) make, or agree to make, any payment of cash or distribution of assets to Quixote or any of its Affiliates, whether pursuant to any management fee or services agreement or similar arrangement; PROVIDED, HOWEVER, Quixote shall be entitled to receive cash from the Business, on a monthly basis, in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate equal to the Companyinterest which would have been earned on the Purchase Price (determined as provided in Article III) for the period commencing October 1, 1996 and ending on March 31, 1997 as if the amount of such Purchase Price had been deposited on October 1, 1996 in an account bearing interest at the rate of 5% per annum; or
PROVIDED FURTHER that if the Closing shall occur prior to March 31, 1997, Quixote shall be entitled to receive from the Business, on the Closing Date, cash in an amount equal to the difference between the amount received as aforesaid and the amount it would have received if the Closing had occurred on March 31, 1997; and PROVIDED FURTHER that DMI shall be entitled to make Permissible Payments; (xviixi) make institute any material change increase in internal control over financial reportingany compensation payable to any employee of DMI, other than any change required by GAAP or any change made by Seller Quixote with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22the Business, or suitable replacements thereforadopt any new, or institute any change or increase in full force and effect through any, "employee benefit plan," as such term is defined in Section 3(3) of ERISA, or any plan, policy, trust, understanding, arrangement or agreement of any kind described in clause (A) or (B) of the Closing Date.first sentence of Section 5.18(b) (irrespective of the second sentence thereof), or institute any compensation plan, with respect to employees of the Business, or incur or accrue any cost, expense or liability with respect to any agreement, understanding or arrangement of any kind described in clause (B) of the first sentence of Section 5.18(b) (irrespective of the second sentence thereof); A-32
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except (x) as set forth in Schedule 7.4 Section 8.4 of the Disclosure Schedules or as contemplated by this Agreement or except (y) with the written approval of Buyer, Partner (which Buyer Partner agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller ▇▇▇▇▇▇▇ shall use and shall cause the JV Entity and its reasonable efforts subsidiaries to (i) operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with operated immediately prior to the foregoingdate of this Agreement and (ii) use its commercially reasonable efforts to preserve intact, Seller shall cause the Company to assets, goodwill and business organization, keep and maintain available the material assets services of the Company in good operating condition Business Employees, and repair and shall use its reasonable best efforts consistent with good to preserve the present business practice to maintain the business organization relationships of the Company intact and preserve the goodwill of the employeesBusiness including relationships with suppliers, brokerscontractors, lenders licensors, customers, distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a8.4(a), except (x) as expressly set forth in Section 8.4 of the Disclosure Schedule, (y) as contemplated by this Agreement or except (z) with the express written approval of Buyer Partner (which Buyer Partner agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller ▇▇▇▇▇▇▇ shall notnot and shall cause the JV Entity and its subsidiaries not to (in each case, with in respect to the Equity Interests, the Company or of the Business, and Seller cause the Company not to:):
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations Transferred Assets, except such changes as may be required to comply with any applicable Requirements of the Company outside the ordinary course of businessLaw;
(ivii) purchase or otherwise acquire any assets or make any capital expenditure expenditures constituting Transferred Assets, in each case that are material, individually or enter into any contract or commitment therefor in excess of $50,000; provided thatthe aggregate, to the Business as a whole (other than (A) in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests practice or (B) the assets or properties of the Company, other than, in the case of this clause (Bas required by any Governmental Body), Permitted Encumbrances;
(viiiii) cancel grant to any debts owed to Business Employee any material increase in any compensation or claims held by benefits (excluding any arrangements that do not involve payments extending past the Company (including the settlement of any claims or litigation) Closing Date), other than changes made in the ordinary course of the Business business consistent with past practicepractice or required pursuant to existing Contracts or applicable Requirements of Law;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than money borrowed or advances from any of their respective Affiliates in the ordinary course of business);
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvv) make any change in any method of financial accounting or financial accounting policies, practices or procedures used by or with respect to the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Business, unless other than such change is changes as are required by or necessary to comply with GAAP;
(xvivi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, fail to manage its working capital in the ordinary course of business consistent with past practicepractices (including (A) deferring, delaying or postponing the payment of accounts payable or other liabilities or obligations other than in the ordinary course of business consistent with past practices, (B) accelerating the collection of accounts receivable other than in the ordinary course of business consistent with past practices or (C) failing to manage or purchase inventory in the ordinary course of business consistent with past practices); provided, however, that notwithstanding anything in this Agreement to the contrary, on or prior to the Closing, the Company may originate loans secured JV Entity and its subsidiaries shall be permitted to make distributions of cash or cash equivalents to ▇▇▇▇▇▇▇ or its Affiliates in ▇▇▇▇▇▇▇’ sole discretion;
(vii) enter into or amend any collective bargaining agreement;
(viii) acquire by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured merging or consolidating with, or by real estate on behalf purchasing a substantial portion of the Company stock or transfer assets of, any loans secured by real estate business or any corporation, partnership, association or other business organization or division thereof;
(ix) sell, transfer, license (other than granting non-exclusive licenses to customers in the ordinary course of business consistent with the past practices), abandon, or otherwise dispose of any assets (other than cash or cash equivalents) that are material, either individually or in the aggregate, to the CompanyBusiness or the Transferred Assets;
(x) materially adversely modify, amend or terminate any Business Agreement that constitutes a Transferred Asset;
(xi) amend or terminate the License Agreement or the Transition Services Agreement; or
(xviixii) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees The Shareholders ------------------------------------ shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to operate and carry on the Business only their business in the ordinary course and substantially as presently operatedconsistent with past practice. Consistent with the foregoing, Seller the Shareholders shall cause the Company to keep and maintain the material assets and properties of the Company in good their current operating condition (normal wear and repair tear excepted) and shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity InterestsBuyer, the Company or the Business, and Seller cause Shareholders not shall permit the Company not to:
(i) amend its articles certificate of incorporation or by-laws (or similar organizational documents)laws;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or stock; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, 250,000 individually or $500,000 in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyaggregate;
(viv) (A) except as contemplated by Schedule 4.23, enter into any Contract ------------- contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 4.16 if in effect on the date hereof, (B) hereof ------------- or enter into any Contract contract which would require requires the consent or approval of a any third party in connection with the consummation of to consummate the transactions contemplated by this Agreement Agreement; or (C) modify, amend, terminate or grant make any consent or waiver under material modification to any existing Company Agreement or to any Contract that would have been Governmental Permits, other than changes made in good faith to cure document deficiencies;
(v) enter into any contract for the purchase, lease (as lessee) or other occupancy of real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in Schedule 4.10(A) ---------------- or any option to extend a Company Agreement if it were lease listed in effect on the date hereof;Schedule 4.10(B); ----------------
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller the Shareholders or any of its their Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, than minor amounts of personal property sold or otherwise disposed of for fair value in the case ordinary course of this clause (B), business consistent with past practice and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), ) other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of cash or distribution or other disposition of assets to the Shareholders or any of their Affiliates (other than cash and cash equivalents) the Company), or enter into, or agree to Seller enter into, any agreement or transaction with the Shareholders (other than the Company), any Affiliate of the Shareholders or any member of its Affiliatesthe immediate family of any Shareholder or any Affiliate of the Shareholders (other than the Company);
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase change in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practicespractices or pursuant to employment agreements in effect on the date hereof;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvxiv) make any material change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;4.4; ------------
(xvi) originate, acquire, hold, sell, transfer, securitize enter into any agreement or hedge loans secured commitment to take any action prohibited by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.this Section 6.4. -----------
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except Between the date of this Agreement and the Closing Date, except as set forth in on Schedule 7.4 or 5.3(a), as otherwise expressly contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toSellers shall:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for operate and carry on the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure operation of the Company;
(iii) make any change businesses conducted at the Facilities in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor business consistent with past practice since April 1, 2005 and use commercially reasonable efforts to preserve intact the Facilities, to keep available the services of the current officers and key employees of the Facilities, and to preserve the relationships and goodwill of the suppliers, contractors, licensors, and others having relations with Sellers in excess connection with the Facilities, and to maintain and preserve the electronic data of $50,000; provided thatthe Facilities, including without limitation, saving and backing up data, in the ordinary course of business consistent with past practice since April 1, 2005; and
(ii) with respect to the Facilities, continue to meet their contractual obligations and to pay such obligations, and to pay all of their accounts payable, in each case in the ordinary course of business consistent with past practice.
(b) Except as set forth on Schedule 5.3(b), as otherwise contemplated by this Agreement or with the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that written approval of Buyer, between the date of this Agreement and the Closing Date, no Seller shall not originate do any loans secured by real estate on behalf of the Company following:
(i) make any material change in the Assets or transfer the Facilities, except such changes as may be required to comply with any loans secured by real estate applicable Law or to effect the Hannibal Wind-Down;
(ii) sell, pledge, dispose of, encumber or otherwise grant any right in any asset that but for such action would be included in the definition of Assets, except with respect to the Companysale of Inventory in the ordinary course of business consistent with past practice and except for Permitted Encumbrances;
(iii) make any deviation from Sellers’ total capital expenditure budget at the Bens Run Facility or the Specialty Facility for such period as provided in Schedule 5.3(b)(iii);
(iv) enter into any Contract in relation to the Bens Runs Facility and the Specialty Facility for the purchase or lease (as lessor or lessee) of real property or exercise any option to extend a lease set forth on Schedule 3.5(a);
(v) (A) enter into institute any Contract which would have been a Company Agreement if increase in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)any, or mortgage or pledgeadopt any new, or impose or suffer to be imposed any Encumbrance oncollective bargaining, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, compensation, restricted stock, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare severance, termination, welfare, employment, consultation or other employee benefit plan agreement, trust, fund, plan or arrangement with respect to employees of any Employees at the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement Bens Run Facility or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the CompanySpecialty Facility, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practicepractice as required by any such existing plan or Contract, or by Law;
(vi) enter into any Contract which would be included in the Company may originate loans secured by definition of Assigned Contracts or make any modification to any existing Assigned Contract, except with respect to entering into or modification in the ordinary course of business consistent with past practice since April 1-to-4 family residential real estate , 2005;
(vii) with respect to the Facilities, cause, or take or omit to take any action to allow, any Assigned Contract to lapse (other than in an aggregate principal amount not accordance with its terms);
(viii) hire any new employees, agents or consultants for the Bens Run Facility or the Specialty Facility except to exceed $2,000,000 per month; provided further that Seller shall not originate replace existing employees, agents or consultants at similar compensation levels and except for any loans secured by real estate on behalf new employees hired in the ordinary course of business consistent with past practice since April 1, 2005;
(ix) allow the lapse of, abandon, or otherwise dedicate to the public domain, any of the Company rights of ownership of material Seller Intellectual Property or transfer use by a third Person of any loans secured by real estate to the Companymaterial Seller Intellectual Property rights; or
(xviix) make agree or otherwise commit to take any material change of the actions described in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing clauses (i) through (ix).
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aleris International, Inc.)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Sellers shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Sellers shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its each of their reasonable best efforts consistent with good business practice to maintain the business organization of the Company Divisions intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, Seller shall not, and Sellers shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from either Division any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingeither Division.
(b) In addition, and without limiting Section 7.4(aNotwithstanding SECTION 7.4(A), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to none of the Equity Interests, the Company or the Business, and Seller cause the Company not toSellers shall:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of either Division or make any expenditure in respect of either Division which shall exceed the Company outside the ordinary course of businessamount, as set forth in SCHEDULE 5.26, budgeted therefor;
(ivii) make any capital expenditure with respect to either Division or enter into any contract or commitment therefor in excess of $50,000; provided thattherefor, other than capital expenditures or commitments for capital expenditures referred to in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate applicable budget contained in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySCHEDULE 5.26;
(viii) (A) except as contemplated by SCHEDULE 5.26, enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.20 if in effect on the date hereof, hereof or enter into any contract with respect to the Business which cannot be assigned to Buyer or a permitted assignee of Buyer under SECTION 13.5;
(Biv) enter into any Contract which would require contract for the consent purchase of a third party real property to be used by either Division or for the sale of any Owned Real Property or exercise any option to purchase real property listed in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement SCHEDULE 5.10 or any Contract that would have been option to extend a Company Agreement if it were lease listed in effect on the date hereofSCHEDULE 5.11;
(viv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company either Division to any Seller or any of its respective Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viivi) cancel any debts owed to or claims held by the Company either Division (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money in respect of either Division (other than money borrowed or advances from any Seller or any of its respective Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixviii) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(xix) delay or accelerate payment of any account payable or other liability of the Company Business beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(x) allow the levels of raw materials, supplies, work-in-process or other materials included in the inventory of either Division to vary in any material respect from the levels customarily maintained in the Business;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to any Seller or any of its Affiliatesrespective Affiliates (other than cash realized upon collection of receivables generated in the ordinary course of the Business);
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyeither Division;
(xiii) make any material increase change in the compensation of the employees of the Companyeither Division, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Axiv) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to SECTION 8.3(A) or accelerating deductions to periods ending on or before the Closing Datefor which any Seller is liable pursuant to SECTION 8.3(A), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;); or
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule SCHEDULE 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. During the period from the date hereof to the Closing Date, Seller will use its Commercially Reasonable Efforts to continue to conduct the Business in the Ordinary Course of Business. In addition, during the period from the date hereof to the Closing Date, Seller will: (a) Except keep in full force and effect its limited liability company existence and all rights, franchises and Intellectual Property Rights relating to or pertaining to the Business; (b) use Commercially Reasonable Efforts to retain its employees and sales and other agents and preserve good business relationships with its employees, vendors, customers and suppliers, and continue to compensate its employees and sales and other agents in accordance with past custom and practice; (c) maintain its books, accounts and records in accordance with past custom and practice; and (d) file with the appropriate Tax Authorities any and all Tax Returns required to be filed by it for the periods covered thereby and pay all Taxes required to be paid by it. Notwithstanding the foregoing, except as set forth below, or in Schedule 7.4 the Ordinary Course of Business, or as otherwise contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedbetween the date hereof and the Closing Date, Seller shall use its reasonable efforts will not do any of the following:
(i) create, incur, assume, or agree to operate and shall use its reasonable efforts to cause create, incur, assume or guarantee, any Indebtedness;
(ii) institute any material increase in, amend, enter into, terminate or adopt any Benefit Plan, other than the Company to carry on the Business only annual renewal of such Benefit Plans in the ordinary course and substantially Ordinary Course of Business or as presently operated. Consistent with otherwise required by any such existing Benefit Plan or by Law; provided, however, that notwithstanding the foregoing, Seller shall cause be entitled to take actions in the Company to keep and maintain the material assets Ordinary Course of Business in furtherance of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization changes described on Section 5.16(b) of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyDisclosure Schedules;
(iii) make any material change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees managers, directors, employees, independent contractors or consultants of the CompanySeller, other than changes made in accordance with normal compensation practices and consistent with past practices of Seller or changes required by existing employment agreements or by any Law; provided, however, that notwithstanding the foregoing, no change shall be made to the compensation practicesof any executive officer of Seller;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xviv) make any material change in the accounting principles, methods, practices or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xviv) originatedelay or fail to make any capital expenditures that were previously budgeted or scheduled to be made;
(vi) (A) issue or sell any equity interests of Seller; (B) issue, acquiresell or grant any securities convertible into, holdor options with respect to, sellwarrants to purchase or rights to subscribe for any equity interests of Seller; (C) effect any recapitalization, transferreclassification, securitize equity interest dividend, or hedge loans secured by real estatelike change in its capitalization of Seller; (D) amend the certificate of formation or operating agreement or any other organizational documents of Seller; (E) make any redemption or purchase of any equity interests of Seller; or (F) grant any equity-based compensation of Seller;
(vii) (A) invest in or otherwise purchase any interest in any other Person or (B) create any Subsidiaries;
(viii) directly or indirectly engage in any transaction, arrangement or Contract with any officer, director, manager, member, equity holder or Affiliate of Seller;
(ix) make any non-cash distributions or dividend distributions to any Person (provided that, for the avoidance of doubt, Seller shall be entitled to make Tax distributions to the Members in the ordinary course Ordinary Course of business consistent Business);
(x) fail to pay material payables and other material Liabilities when due;
(xi) fail to maintain insurance policies currently maintained by the Business unless replacement policies with past practiceat least similar coverage areas and amounts are procured;
(xii) sell any of its assets (whether tangible or intangible);
(xiii) fail to comply in all material respects with all Laws applicable to the Purchased Assets and the Business;
(xiv) terminate or fail to maintain or renew any material Permits;
(xv) willingly do any other act, the Company may originate loans secured by 1-to-4 family residential real estate or omit to take any action, which would cause any representation or warranty of Seller in an aggregate principal amount not this Agreement to exceed $2,000,000 per month; provided further that Seller be or become untrue;
(xvi) amend, modify, extend, renew, terminate or enter into any Material Agreement or Lease;
(xvii) acquire, directly or indirectly, any shares of stock or equity of Mastek, Ltd., parent of Buyer and shall not originate permit any loans secured by real estate of its officers, directors, members, managers, financial advisors or Persons acting on its behalf to acquire, directly or indirectly, any shares of the Company stock or transfer any loans secured by real estate to the Companyequity of Mastek, Ltd.; or
(xviixviii) make any material change fail to maintain the Purchased Assets, in internal control over financial reportingsubstantially their current state of repair, other than any change required by GAAP excepting normal wear and tear, or any change made by Seller with respect fail to all replace inoperable, worn out or obsolete or destroyed Purchased Assets that are used in the Ordinary Course of its Controlled Affiliates.Business;
(cxix) The Company shall keep all insurance policies set forth on Schedule 5.22enter into any agreement, or suitable replacements thereforotherwise become obligated, in full force and effect through the Closing Dateto do any action prohibited under clauses (i) – (xviii) of this Section 7.3.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyeragreement, which Buyer agrees seller and buyer shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only their respective businesses in the usual, regular and ordinary course and manner, substantially as presently operatedoperated and with a view to the maintenance and preservation of the assets and going concern value existing as of the date hereof. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement agreement or except with the express prior written approval consent of Buyer the other party, each party (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall notas to seller, with respect to the Equity Interests, the Company or the Dental Business, and Seller cause the Company ) agrees not to:
: (i) amend its articles of incorporation change, alter or by-laws (make any employment contracts or similar organizational documents);
arrangements with any management personnel; (ii) issuecreate, grantassume, sell or encumber acquire property subject to any shares of its capital stock lien, mortgage or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes encumbrance except in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
; (iviii) make compromise any capital expenditure debt or enter into any contract claim except for adjustments made with respect to contracts for the purchase of supplies and materials or commitment therefor in excess for the sale of $50,000; provided that, products in the ordinary course of business consistent with past practicebusiness, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause aggregate are not material; (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigationiv) other than in the ordinary course of the Business consistent with past practice;
(viii) createbusiness, enter into any transaction, incur any indebtedness or assumeother obligation, or agree to createor, incur or assumewithout the prior written consent of the other party, sell any Indebtedness assets; (v) alter, amend or enter intointo any licensing or other contractual arrangement with respect to intellectual property; (vi) make any material changes in its existing business practices affecting the amount of inventory in the Dental Business, as lesseeincluding but not limited to changes, whether or not material, to historical terms of sales of inventory; or (vii) make any capitalized lease obligations (as defined other material change in Statement the business or operation of Financial Accounting Standards Nothe Dental Business or enter into any material agreement. 13)Buyer agrees not to unreasonably withhold approval of non-cancelable agreements with a term less than one year, other than and normal purchase orders for materials, supplies, etc., shall not require buyer's approval. Seller shall be entitled to continue to distribute and sell inventory in the ordinary course of business;
(ix) accelerate or delay collection , subject to the provisions of paragraph 9.5, below, concerning the book value of seller's inventory on the closing date. Seller agrees to replace, consistent with past practice, any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected products consigned to its sales personnel that are sold by said sales personnel in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment business. Seller agrees that segregation of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have inventory to seller's ophthalmic business has been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9completed, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior no additional inventory will be transferred to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesseller's ophthalmic business.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunrise Technologies International Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with Agreement, as disclosed in Disclosure Schedule 7.02, upon the express prior written approval consent of Buyer (which Buyer agrees shall consent will not be unreasonably withheld withheld, conditioned or delayed), Seller shall notfor Emergency Operations, with respect as required by Applicable Laws, or as required or prohibited pursuant to the Equity Interests, the Company a Bankruptcy Court Order or the BusinessBankruptcy Cases, and Seller cause from the Company not todate hereof until the Closing Date:
(i) amend Each Seller shall (A) operate the Assets and Business operated by such Seller in a manner consistent with past practices and in the Ordinary Course of Business in all material respects, (B) give prompt notice to Buyer of any material damage or any material Casualty Loss and any written notice received or made by such Seller of any material claim asserting any tort or violation of Applicable Law or any new Proceeding that (in each case) relates to such Assets, (C) with respect to Emergency Operations of such Seller, notify Buyer of such emergency and the related Emergency Operations as soon as reasonably practicable and (D) use commercially reasonable efforts to (1) keep in full force and effect all Permits, (2) comply in all material respects with all Applicable Laws, (3) maintain its articles Assets in good operating condition consistent with past practice and (4) maintain books, accounts and records relating to such Assets in a manner consistent with past practices and in the Ordinary Course of incorporation or by-laws (or similar organizational documents);Business; and
(ii) issueEach Seller will not:
(A) merge, grantconsolidate, sell liquidate, dissolve, recapitalize or encumber any shares of otherwise wind up its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure operations of the CompanyBusiness or abandon or permit any material Asset owned or held by such Seller to lapse;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(vB) (A1) enter into any Contract which that would have constitute a Material Contract if in existence as of the date of this Agreement, (2) terminate, cancel, materially amend or modify, or extend any Material Contract that has been identified as such as of the date hereof or (3) waive any material rights under any Material Contract;
(C) sell, lease, transfer, assign, license, subject to any Encumbrance (other than Permitted Encumbrances) or otherwise dispose of (including pursuant to a Company sale or leaseback transaction or an asset securitization transaction) any of the Assets except, (1) pursuant to the terms of any 365 Contracts in force at the date of this Agreement if as listed on Disclosure Schedule 7.02, (2) for dispositions of obsolete or worthless equipment, (3) for transactions involving sales of crude oil, natural gas, condensate, natural gas liquids and other produced Hydrocarbons and minerals made in the Ordinary Course of Business or (4) for sales, transfers, leases, or other disposals to any other Seller; provided that in the case of clause (4), the relevant Asset remains subject to this Agreement;
(D) enter into any joint venture, strategic alliance, exclusive dealing, noncompetition or similar Contract or arrangement that would restrict or limit, in any material respect, the operations of the Assets or the Business after the Closing;
(E) materially change its accounting methods, policies or practices (or change an annual accounting period), in each case as they relate to the Assets, other than (i) any generally applicable change that is applicable to Sellers’ other businesses and assets or (ii) as required by Sellers’ auditors;
(F) other than in the Ordinary Course of Business, cancel, compromise, waive or release any material right or claim in a manner or with an effect that, individually or in the aggregate, is adverse to the Business or the ownership or operation of any of the Assets in any respect;
(G) permit the lapse (without renewal or replacement) of any existing Insurance Policies relating to the Assets;
(H) accelerate the collection of or discount any accounts receivable, delay the payment of accounts payable, defer capital expenditures or other expenses, or reduce inventories, in each case relating to the Assets, except in the Ordinary Course of Business;
(I) commence, settle or propose to settle any material Proceedings relating to the Assets or the Business;
(J) increase the compensation payable or potentially payable or benefits provided to any Applicable Employee other than in the Ordinary Course of Business or as required by the terms of any Seller Benefit Plan applicable to such Applicable Employee as in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviiK) make terminate the employment of any material change in internal control over financial reportingApplicable Employee, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesfor cause.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Southcross Energy Partners, L.P.)
Operations Prior to the Closing Date. (a) Except Between the date hereof and the Closing Date, but except as set forth in Schedule 7.4 or as otherwise contemplated by this Agreement or except with herein, the written approval of Buyer, which Buyer agrees Shareholder Parties shall not be unreasonably withheld or delayed, Seller shall cause the Company to use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only its business in the ordinary course and substantially as presently operatedin the same manner in which the Company has previously conducted its business during the period covered by the Financial Statements and consistently with those practices, policies, customs and usages which were in effect from time to time throughout that period. Consistent with the foregoingforegoing but except as otherwise contemplated herein, Seller the Shareholder Parties shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its commercially reasonable best efforts efforts, consistent with good business practice practice, to maintain the business organization of the Company intact and preserve the goodwill of the employeessuppliers, brokerscontractors, lenders licensors, employees and others having business relations with the Company. In connection therewithCompany and keep available the services of key employees, Seller shall notmaintain in full force and effect the insurance policies referred to in Section 4.25, and shall not permit the Company to, comply in all material respects with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingapplicable Laws.
(b) In addition, and without Without limiting the provisions of Section 7.4(a6.4(a), except as expressly set forth below, as otherwise contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to between the Equity Interestsdate hereof and the Closing Date, the Company or shall not do any of the Business, and Seller cause the Company not tofollowing:
(i) amend Make any material change in its articles of incorporation or by-laws (or similar organizational documents)operations, except such changes as may be required to comply with any applicable Law;
(ii) issue, grant, sell or encumber Make any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any single capital expenditure or enter into any contract or commitment therefor in excess of Fifty Thousand Dollars ($50,000; provided that), except in the ordinary course of business consistent with past practicebusiness, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation opening of New Store Locations or otherwise in accordance with the transactions contemplated by this Agreement or Company’s 2005 budget;
(Ciii) modifyEnter into, amend, modify or terminate any contract for the purchase or grant lease (as lessor or lessee) of real property or exercise any consent option to extend a Lease, except in connection with the opening of New Store Locations or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were otherwise in effect on accordance with the date hereofCompany’s 2005 budget;
(viiv) sellSell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates)of, or license, mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests its assets, in whole or (B) the assets or properties of the Companyin part, other than, in the case than sales of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than inventory in the ordinary course of business and personal property sold or otherwise disposed of in the Business consistent with past practiceordinary course of business, except for any asset which is obsolete or which is not material to its business;
(viiiv) createCreate, incur or incur, assume, or agree to create, incur incur, or assumeassume or guarantee, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), material indebtedness for borrowed money other than money borrowed or advanced from any Affiliate of the Company in the ordinary course of business;
(ixvi) accelerate Institute any material increase in, enter into, terminate or delay collection of adopt any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more Benefit Plan, other than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practicebusiness as required by any such existing plan, or by any employment agreement or by Law;
(xvii) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute Make any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase change in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practicespractices of the Company or changes required by employment agreements or by any Law;
(Aviii) except as required by applicable Requirements of Law, prepare or file Make any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any material change in the accounting principles, methods, practices or policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAPapplicable Law;
(xviix) originateEnter into any contract or make any material modification to any existing Contract, acquirein each case other than any contracts or extensions (i) with a term of less than one (1) year, hold(ii) which involve a firm commitment to pay any amount less than Fifty Thousand Dollars ($50,000), sellor (iii) are entered into or modified in the ordinary course of business;
(x) Hire any new employees, transferagents or consultants except to replace existing employees, securitize agents or hedge loans secured by real estate; provided that, consultants at similar compensation levels and except for any new employees hired in the ordinary course of business consistent with past practiceto fill positions contemplated by the Company’s 2005 budget; or
(xi) Redeem, purchase, repurchase or retire any of the Company may originate loans secured by 1capital stock of the Company;
(xii) Sell, lease, transfer or otherwise dispose of all or any material portion of its assets, including, without limitation, rights to patents, know-to-4 family residential real estate how, intellectual property or other intangible assets or cancel any debts or claims;
(xiii) Make any change in an aggregate principal amount not the Certificate or Articles of Incorporation or Bylaws or other charter documents of the Company;
(xiv) Make any change in the authorized or issued and outstanding capital stock of the Company, including any changes involving treasury shares;
(xv) Grant any options, warrants, rights or any similar securities or instruments to exceed $2,000,000 per month; provided further that Seller shall not originate purchase directly or indirectly any loans secured by real estate on behalf securities of the Company;
(xvi) Enter into any new transaction in which any officer or director of the Company or transfer any loans secured by real estate record or beneficial holder of any securities of the Company has any interest, directly or indirectly;
(xvii) Effect any dissolution, winding-up, liquidation or termination of the Company’s business;
(xviii) Make any investment in, or make any loan, advance or credit to any person, including, without limitation, officers, shareholders or directors of the Company, other than credits to customers in the ordinary course of business and travel advances to officers, directors and employees of the Company made in the ordinary course of business in amounts consistent with past practices;
(xix) Assume, endorse, guarantee or otherwise become liable for or upon the obligation of any person (other than endorsements for deposit in the ordinary course of business) with respect to the Company;
(xx) Institute, settle or dismiss any litigation, claim or other proceeding before any court or governmental agency involving an amount in excess of One Hundred Thousand Dollars ($100,000) on an individual basis (and Two Hundred Fifty Thousand Dollars ($250,000) on an aggregate basis) with respect to the Company; or
(xviixxi) Acquire or purchase any properties or assets (other than in the ordinary course of business), merge or consolidate with, or acquire all or substantially all of the assets of, or otherwise acquire, any Person, or make any material change investment in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesPerson.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (SCP Pool Corp)
Operations Prior to the Closing Date. (a) Except as (i) set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets Section 7.4(a) of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of SellerDisclosure Letter, (ii) offer such employee employment contemplated by Seller or an Affiliate of Seller after the Closing Date or this Agreement, (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make as may be required to comply with any capital expenditure applicable Requirements of Law or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party as may be required or reasonably deemed to be advisable in connection with the consummation of the transactions contemplated by this Agreement or Greater ▇▇▇▇▇▇▇▇ Incident (C) modifyprovided, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other thanthat, in the case of this clause (Bv), Permitted Encumbrances;
(vii1) cancel any debts owed to the prior written approval of Buyer (which shall not be unreasonably withheld, conditioned or claims held by delayed) shall be required if such action or omission materially and adversely affects the Business, taken as a whole, and (2) such efforts or actions of Seller shall, in all material respects, be in compliance with all orders of the MDPU), the Company shall (including and Seller Parent shall cause the settlement of any claims or litigationCompany to) other than use its commercially reasonable efforts (x) to operate and carry on the Business in the ordinary course substantially in the same manner as conducted prior to the date hereof and (y) to preserve the Business and goodwill of the Business consistent suppliers, contractors, licensors, employees, customers, distributors and others having business relations with past practicethe Business.
(b) Notwithstanding Section 7.4(a), except (A) as set forth in Section 7.4(b) of the Seller Disclosure Letter, (B) as contemplated by this Agreement, (C) with the written approval of Buyer (which Buyer agrees shall not be unreasonably withheld, conditioned or delayed), (D) as may be required or reasonably deemed to be advisable to comply with any applicable Requirements of Law or (E) as may be required in connection with the Greater ▇▇▇▇▇▇▇▇ Incident; provided, that, in the case of this clause (E), (1) the prior written approval of Buyer (which shall not be unreasonably withheld or delayed) shall be required if such action or omission materially and adversely affects the Business, taken as a whole, and (2) such efforts or actions of Seller shall, in all material respects, be in compliance with all orders of the MDPU:
(i) Seller shall not make any material change in the Business;
(viiiii) the Company shall not declare, set aside, make or pay any dividend or other distribution other than dividends or distributions of cash or cash equivalents;
(iii) the Company shall not create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money (other than money borrowed or enter intoadvances from any of the Company’s Affiliates in the ordinary course of business and that will be settled or repaid in full, as lesseeor canceled or terminated, at or prior to Closing);
(iv) Seller shall not (A) increase the compensation, bonus, or pension, welfare, severance or other material fringe benefits payable to, or make any new equity or equity-based awards to, any capitalized lease obligations Business Employee or Former Business Employee (except for increases in pension or welfare benefits under broad-based plans (other than the Company Pension Plans) made in the ordinary course of business consistent with past practice with respect to which Seller shall be solely obligated); (B) pay or grant any severance, termination or change-of-control benefit to any Business Employee or Former Business Employee; (C) adopt, amend, modify or terminate any Benefit Plan, including any plan, policy, agreement or arrangement that would be a Benefit Plan had it been in effect as defined of the date hereof, or increase benefits provided pursuant to any Benefit Plan or amend the terms of any outstanding equity-based awards (except for adoption, amendment, modification, termination of or benefit increases with respect to broad-based plans in Statement the ordinary course of Financial Accounting Standards No. 13business consistent with past practice with respect to which Seller shall be solely obligated); (D) take any action to accelerate the vesting, payment or funding of compensation or benefits with respect to any Business Employee or Former Business Employee under any Benefit Plan; (E) change the manner in which contributions to Benefit Plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (F) make or forgive any loans to any Business Employee or Former Business Employee; in each of (A) – (F), other than (x) as required by any such plan or existing contractual commitments as of the date hereof or Requirements of Law or (y)
(1) other than Key Employees, any increase in base salary for individuals of less than four percent (4%) of the affected individual’s current base salary, (2) with respect to Key Employees, increases in base salary of less than $25,000 or (3) any increase in base salary in the ordinary course of business as a result of the promotion of any individual (which shall, for manager-level employees and above, require the consent of Buyer (not to be unreasonably withheld, conditioned or delayed);
(v) the Company shall not acquire, or agree to acquire, in any manner, including by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, any business or any corporation, partnership, association or other business organization or division thereof other than purchases of assets in the ordinary course of business;
(vi) Seller shall not permit or take any action to cause any of the Purchased Assets to become subject to an Encumbrance (other than a Permitted Encumbrance);
(vii) Seller shall not sell, lease, license, transfer or otherwise dispose of any Purchased Assets (other than cash or cash equivalents or in the ordinary course of business);
(viii) Seller shall not modify, amend, waive, extend or renew or terminate any Material Contract, or enter into any contract that would be classified as a Material Contract if in effect on the date hereof (except for entering into Material Contracts that may be terminated without penalty by the Company or its Affiliate party thereto with 90 days’ notice or less);
(ix) the Company shall not write-down or write-up the value of any Purchased Asset, or other than in the ordinary course of business, write-off any accounts receivable or notes receivable;
(x) the Company shall not accelerate or delay the payment of accounts payable, accelerate or delay the collection of any notes or accounts receivable or otherwise fail to pay accounts payable and other business obligations or to collect accounts receivable, in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (each case other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, ;
(xi) the Company may originate loans secured by 1-to-4 family residential real estate in shall not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(xii) the Company shall not cancel, surrender, allow to expire or fail to renew, any material Permits;
(xiii) Seller shall not, with respect to the Company or the Business, materially change an aggregate principal amount not to exceed $2,000,000 per month; provided further that existing line of business or enter into a new line of business;
(xiv) Seller shall not originate make, change or revoke any loans secured by real estate on behalf material Tax election, elect or change any material method of the Company accounting for Tax purposes, amend any material Tax Return, settle any action in respect of Taxes, or transfer enter into any loans secured by real estate Contract in respect of Taxes with any Governmental Body, in each case, to the Companyextent the same would be binding on Buyer with respect to the Purchased Assets or the Business following the Closing; or
(xviixv) make Seller shall not authorize, commit or agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect of the foregoing applicable to all of its Controlled Affiliatesit.
(c) The Notwithstanding the foregoing, the Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through its Affiliates may cancel intercompany loans (other than the Closing DateIntercompany Loans).
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except Prior to the Closing, Parent shall, and shall cause the Acquired Company and, with respect to the written approval of BuyerBusiness, which Buyer agrees shall not be unreasonably withheld or delayedthe Asset Sellers to, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course consistent with past practice and substantially as presently operated. Consistent with operated immediately prior to the foregoing, Seller shall cause date of this Agreement and use commercially reasonable efforts to:
(i) preserve the Company to business relationships of the Business and keep available the services of its key employees and maintain the material assets of the Company in good operating condition its relations and repair and shall use goodwill with its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employeeskey suppliers, brokerscustomers, lenders employees and others having business relations relationships with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, Business;
(ii) offer such employee employment by Seller maintain in effect all Intellectual Property included in the Acquired Assets and applications and registrations for Intellectual Property included in the Acquired Assets (other than abandonments, expirations and cancellations occurring in the ordinary course of business consistent with past practice that are not material, individually or an Affiliate of Seller after in the Closing Date or aggregate, to the Business); and
(iii) otherwise attempt to persuade any such employee to terminate his or her relationship with maintain all material structures, equipment and other tangible personal property of the Company or not to continue employment with Business, in their present repair, order and condition, except for depletion in the Company after the Closingordinary course of business and ordinary wear and tear.
(b) In addition, and without Without limiting the generality of Section 7.4(a), except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except Agreement, with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed) or as set forth on Schedule 7.4(b), Seller Parent shall notcause the Acquired Company and, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of Acquired Assets, the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatAsset Sellers, other than in the ordinary course of business consistent with past practice, not to:
(i) purchase or otherwise acquire any assets (including real property) or make any capital expenditures, in each case that are material, individually or in the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount aggregate, to the Business (other than capital expenditures that do not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of 250,000 individually or $500,000 in the Company or transfer any loans secured by real estate to the Companyaggregate);
(vii) sell, lease, license, sublicense, abandon, encumber (Aother than Permitted Encumbrances) or otherwise transfer or dispose of, or grant any purchase options or rights with respect to, any assets, properties (including real property) or interests of the Business or any interest therein, or enter into any Contract which would have been a Company Agreement if agreement to do any of the foregoing (other than the sale of inventory in effect on the ordinary course of business consistent with past practice and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) alter (except for maintenance in the ordinary course of business), demolish or remove any improvements on the Real Property or erect improvements on the Real Property or any portion thereof;
(Biv) enter into make any Contract which would require the consent of a loan to any third party in connection with the consummation of Business or create or allow the transactions contemplated by this Agreement Business to create, incur, assume or guarantee any indebtedness for borrowed money (Cother than as will be discharged on or prior to the Closing Date);
(v) modify, amend, terminate or grant transfer any consent or waiver under any Company Agreement assets to Parent or any Contract that would have been a Company Agreement if it were of its Affiliates (other than the Acquired Company), other than Cash and Cash Equivalents and other than in effect on connection with settling any intercompany accounts, balances or other transactions prior to the date hereofClosing;
(vi) sell, lease (as lessor), transfer materially increase the benefits provided under any Plan to any current or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13)former Service Provider, other than in the ordinary course of businessbusiness consistent with past practice or as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(ixvii) accelerate materially increase the base salary, wages, bonus opportunity or delay collection other compensation or benefits of any notes Business Employee who is an officer or accounts receivable in advance has an annual base salary of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9150,000, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable the terms of any Plan or Contract (in each case, in effect as of the date hereof) or pursuant to Requirements of Law, prepare whether or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, not in the ordinary course of business consistent with past practice;
(viii) establish, adopt, materially amend or terminate any Plan in a manner that impacts the compensation and/or benefits provided to Service Providers or any collective bargaining or similar agreement (including the CBA), except as required to comply with Requirements of Law;
(ix) grant any compensatory equity awards or accelerate the vesting or payment of any compensation or benefits to or for the benefit of any Service Provider, other than as required to comply with Requirements of Law, whether or not in the ordinary course of business consistent with past practice;
(x) hire, promote or terminate (other than for cause) any Service Provider who is an officer or has an annual base compensation of more than $75,000, or transfer the employment or engagement of any Service Provider from the Acquired Company may originate loans secured to any Affiliate thereof, or transfer the employment or engagement of any Person from Parent, Sellers or their Affiliates (other than any Acquired Company) to the Acquired Company;
(xi) acquire by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured merging or consolidating with, or by real estate on behalf purchasing a substantial portion of the Company capital stock or transfer assets of, directly or indirectly, any loans secured by real estate to the Company; orbusiness or any corporation, partnership, association or other business organization or division thereof;
(xviixii) accelerate, terminate, materially modify or amend any Material Contract, or enter into any Contract that would be a Material Contract if in existence as of the date hereof;
(xiii) make any material change in internal control over financial reportingthe accounting methods or policies of the Business (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other than any expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(xiv) make, change or revoke any Tax election; adopt or change made by Seller any accounting method with respect to all Taxes with respect to the Business; file any amended Tax Return; enter into any closing agreement with respect to the Business; settle or compromise any Tax claim or assessment with respect to the Business; or consent to any extension or waiver of its Controlled Affiliates.the limitation period applicable to any claim or assessment with respect to Taxes of the Business;
(cxv) The Company shall keep all insurance policies set forth on Schedule 5.22issue, deliver or suitable replacements thereforsell any securities of the Acquired Company;
(xvi) amend the Organizational Documents of the Acquired Company;
(xvii) enter into a new line of business or abandon or discontinue any existing lines of business;
(xviii) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in full force bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law;
(xix) waive or settle any claims or rights that Relate to the Business which claims or rights are material to the Business (except for any Excluded Liabilities); provided that any Seller may settle any such claim if such settlement does not provide for any relief other than the payment of monetary damages and effect through such payment is made by a Seller or one of Sellers’ Affiliates (other than the Closing DateAcquired Company) prior to the Closing; or (xx) agree to do any of the foregoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Prior to the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedClosing, Seller shall use its reasonable efforts cause the Company Group and Asset Contributors to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the Ordinary Course of Business except as (i) and to the extent Requirements of Law require the Business to be operated and carried on in a manner that is not ordinary course course, (ii) expressly contemplated by this Agreement (including the Asset Contributions contemplated by Article II and substantially as presently operatedthe Reorganization contemplated in Section 7.4) or (iii) consented to by Buyer in writing (which consent shall not be unreasonably withheld, delayed or conditioned). Consistent with the foregoingforegoing (subject to the exceptions described in the preceding sentence and Section 7.2(b)), Seller shall cause the Company Group and the Asset Contributors (solely with respect to keep and maintain the material assets of the Company in good operating condition and repair and shall Contributed Assets) to use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employeessuppliers, brokerscustomers, lenders Governmental Bodies and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingthem.
(b) In additionPrior to the Closing, and without limiting the generality of Section 7.4(a7.2(a), except as expressly contemplated by this Agreement Agreement, except as set forth in Schedule 7.2(b) or except with the express written approval consent of Buyer (which Buyer agrees consent shall not be unreasonably withheld withheld, conditioned or delayed)) or except as required by Requirements of Law or by any existing Company Agreement, Seller shall not, cause the Company Group and the Asset Contributors (solely with respect to the Equity Interests, Contributed Assets and the Company or the Business, and Seller cause the Company not toAssumed Liabilities) to not:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on for the date hereof, (B) enter into any Contract which would require the consent purchase or lease of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests real property or (B) exercise any option to extend a lease other than an extension of a lease listed in Schedule 5.9 within the assets or properties of the Company, other than, parameters set forth in the case of this clause (B), Permitted Encumbrancessaid schedule;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiii) create, incur incur, assume or assumeguarantee, or agree to create, incur incur, assume or assumeguarantee, any Indebtedness or enter into, as lessee, any capitalized lease obligations indebtedness for borrowed money (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay money borrowed from or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to advanced from Seller or any of its AffiliatesAffiliates that is repaid prior to Closing, (y) performance bonds entered into in the Ordinary Course of Business and (z) any indebtedness for borrowed money that will be released at the Closing);
(xiiiii) institute any changes which in the aggregate impose a material increase in the obligations of the Companies or the Company Subsidiary under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the CompanyBusiness Employees, except for payments related as consistent with past practices or which are required to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result comply with applicable Requirements of this Agreement or the transactions contemplated herebyLaw;
(xiiiiv) (A) make any material increase in change to any compensatory or benefit plan, program, agreement or arrangement with respect to the Business Employees’ participation, benefits or compensation thereunder, (B) establish, adopt or become a party to any new compensation or benefit plan, program, agreement or arrangement with respect to the Business Employees or (C) otherwise change the compensation of the employees of the Companyor benefits provided to any Business Employees, other than than, in each case, changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Ai) except other than in the Ordinary Course of Business, hire any individual with annual base salary or wages in excess of $150,000 who would be a Business Employee if such individual had been employed as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect date of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), this Agreement or (Bii) settle or otherwise compromise hire any claim related individual in the United States on a basis other than “at will” who would be a Business Employee if such individual had been employed as of the date of this Agreement;
(vi) other than in the Ordinary Course of Business and solely with respect to Taxesthe Business, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxescollective bargaining agreements;
(xvvii) terminate the employment of any Business Employee that is a vice president or more senior officer other than for cause or other misconduct, consistent with the employment policies applicable to such Business Employee or modify or release the terms of any employment agreement or non-competition with any such Business Employee;
(viii) make any material change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Interim Balance Sheet, unless such change is except as required by GAAP;
(xviix) originate, acquire, hold, sell, transferlease to others or otherwise dispose of any of its assets (except for sales in the Ordinary Course of Business) that has a value in excess of $250,000 individually or $1,000,000 in the aggregate;
(x) change or amend any of the organizational documents of any Company Group Member;
(xi) issue, securitize transfer or hedge loans secured sell any of its membership interests or other securities, acquire directly or indirectly, by real estate; redemption or otherwise, any such membership interests or securities, reclassify or split-up any such membership interests or securities or grant or enter into any options, warrants, calls or commitments of any kind with respect thereto;
(xii) acquire any capital stock or other equity securities of any Person or acquire any equity or ownership interest in any business;
(xiii) authorize or commit to make any capital expenditures in excess of $1,000,000 individually or $5,000,000 in the aggregate, except as contemplated in the capital expenditure estimate previously provided thatto Buyer;
(xiv) mortgage, pledge or agree to subject to any Encumbrance (other than a Permitted Encumbrance), any of its assets unless such Encumbrance will be removed at or prior to Closing or unless such Encumbrance is given in connection with the leasing (and not financing) of assets to any Company Group Member in the Ordinary Course of Business;
(xv) waive any rights of material value or settle any Proceeding (including any Consumer Investigation) against any Company Group Member or adversely affecting the Business, whether by agreement or otherwise, other than any settlement that satisfies all of the following conditions: (x) such settlement involves only aggregate cash payments from a Company Group Member less than $100,000 with respect to any such Proceeding or group of related Proceedings, (y) such settlement would not reasonably be expected to otherwise have an adverse impact on any Company Group Member or the Business and (z) no Company Group Member will have any obligation or liability to be performed by such Company Group Member under such settlement agreement after the Closing Date other than, in the ordinary course case of business consistent with past practicethe MOU, the Company may originate loans secured by 1-to-4 family residential real estate obligations described in an aggregate principal amount not Schedule 5.14(e);
(xvi) relinquish or fail to exceed $2,000,000 per month; provided further renew any permit that Seller shall not originate any loans secured by real estate on behalf is necessary to operate the Business or for the ownership and use of the Company or transfer any loans secured by real estate to Contributed Assets and the Company; orAssumed Liabilities;
(xvii) dissolve, liquidate or take any action to dissolve or liquidate itself;
(xviii) delay or accelerate payment of any account payable or other liability of the Business beyond or in advance of its due date or the date when such liability would have been paid in the Ordinary Course of Business;
(xix) except as may otherwise be required under Requirements of Law, make or change any Tax election, change an annual Income Tax accounting period, adopt or change any Tax accounting method, file any material amended Tax Return, enter into any Tax closing agreement, make any settlement of or compromise any material change in internal control over financial reporting, other than any change required by GAAP Tax claim or assessment relating to the Contributed Assets or any change made by Seller with respect Company Group Member, surrender any right to all claim a refund or consent to any extension or waiver of its Controlled Affiliates.
(c) The the limitation period applicable to any Tax claim or assessment relating to the Contributed Assets or any Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements thereforGroup Member, in full force all cases if doing so would have the effect of increasing by more than $50,000 in the aggregate the Tax liability of the Company Group Members, and effect through the Tax Liability to which the Contributed Assets could be subject, levied or assessed, for any period ending after the Closing Date; provided, however, for the avoidance of doubt, Seller or any Company Group Member or any Affiliate thereof shall be entitled to settle or otherwise resolve any Tax claim or assessment by the State of Wisconsin relating to sales apportionment factors to the extent such settlement or resolution does not, based on business operations as of the Closing Date, adversely affect Buyer or any of its Affiliates (including any Company Group Member) after the Closing;
(xx) cease to maintain the books and records of the Business in accordance with past practice; and
(xxi) enter into any contractual obligation or arrangement to do any of the things referred to in clauses (i) through (xx). Notwithstanding anything to the contrary contained herein, nothing shall prohibit Seller or any Company Group Member from time to time from (i) sweeping cash from the accounts of any Company Group Member, including making any distributions or dividends in furtherance thereof, and retaining such cash for their own account or the account of any of their Affiliates or (ii) paying, pre-paying, reducing or otherwise discharging any indebtedness for borrowed money of any Company Group Member, up until the completion of the Closing. Notwithstanding anything to the contrary contained herein, nothing shall prohibit or limit the transfer of Excluded Assets prior to the Closing or to limit in any manner Seller’s ability to take any actions contemplated by Section 7.4.
Appears in 1 contract
Sources: Asset Contribution and Equity Purchase Agreement (West Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Each of the written approval of Buyer, which Buyer agrees ------------------------------------ Sellers shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts cause the Company and the Subsidiaries to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operatedoperated immediately prior to the date of this Agreement and maintain the Company's and each Subsidiary's books, accounts and records in the usual, regular and ordinary manner until the Closing Date. Consistent with the foregoing, Seller the Sellers shall cause the Company and the Subsidiaries to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain preserve the business organization Business and Properties of the Company intact and the Subsidiaries and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyCompany and the Subsidiaries and to maintain the insurance set forth on Schedule 5.20. In connection therewithWithout limiting the foregoing, Seller the Sellers shall not-------------
(i) continue to provide all services and other support to the Company and the Subsidiaries as it provides to them as of the date of this Agreement, including providing payroll, accounting, treasury operations and other administrative operations and (ii) make any loans or 41 advances consistent with past practices as may be necessary to permit the Company and the Subsidiaries to operate and carry on the Business in the ordinary course and substantially as operated by Sellers immediately prior to the date of this Agreement. The Sellers shall, and shall not permit cause their respective Affiliates (other than the Company toand the Subsidiaries) to conduct their respective business relationships with the Company and the Subsidiaries only in the ordinary and usual course of business consistent with past practices; provided, with respect to any employee however, that except as otherwise contemplated by this Agreement, -------- ------- without the prior written consent of the CompanyBuyer, in no event shall Sellers or any of their respective Affiliates (iother than the Company and the Subsidiaries) transfer such employee to Seller enter into any contracts, commitments or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship arrangements with the Company or not to continue employment with any of the Subsidiaries other than on terms and provisions which could be obtained by the Company after the Closingor any such Subsidiary with respect to similar contracts, commitments or arrangements with third parties.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as set forth on Schedule -------------- -------- 7.4, except as expressly contemplated by this Agreement or except with the --- express written approval of Buyer (which Buyer agrees the Buyer, the Sellers shall not be unreasonably withheld or delayed), Seller and shall not, with respect to the Equity Interests, not permit the Company or any of the Business, and Seller cause the Company not Subsidiaries to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes except in the equity capital structure ordinary and usual course of the Company;
(iii) business consistent with their past practices, make any change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law; provided, however, that Sellers shall -------- ------- provide Buyer with written notice of such change at least three (3) business days prior to making any material change in the operations Business; provided, further, that if such change is made to comply with any -------- ------- applicable Requirements of the Company outside the ordinary course of businessLaw, prior notice shall only be required if reasonably practical; or make any expenditure which shall exceed Two Hundred Fifty Thousand Dollars ($250,000), other than as contemplated by any Business Agreement;
(ivii) except in the ordinary and usual course of business consistent with their past practices, make any capital expenditure or enter into any contract or commitment therefor in excess of One Hundred Thousand Dollars ($50,000; provided that100,000);
(iii) acquire any interest in, or enter into any contract for the purchase of real property;
(iv) except in the ordinary and usual course of business consistent with their past practicepractices, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth on Schedule -------- 5.10, 5.11(a) or 5.11(b) , 5.14, 5.16 or 5.18 if in effect on the date ---- ------- -------- ---- ---- ---- hereof, (B) or enter into any Contract contract which would require requires the consent or approval of a any third party in connection with the consummation of to consummate the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofAgreement;
(viv) except in the ordinary and usual course of business consistent with their past practices, sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from of their respective Properties or assets reflected on the Financial Statement or assets acquired by the Company to Seller after the Financial Statement Date;
(vi) except for trust fund accounts for customers imposed by applicable Requirement of Law or any contract, and except for liens in favor of its Affiliates)collection attorneys, or mortgage or mortgage, pledge, or impose or suffer to be imposed any Encumbrance on, (other than a Permitted Encumbrance) on any of (A) their respective Properties or assets reflected on the Equity Interests Financial Statement or (B) assets acquired by the assets or properties of Company after the Company, other than, in the case of this clause (B), Permitted EncumbrancesFinancial Statement Date;
(vii) cancel acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any debts owed to other manner, any other Person or claims held by alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company (including the settlement of or any claims or litigation) other than in the ordinary course of the Business consistent with past practiceSubsidiaries;
(viii) except in the ordinary and usual course of business consistent with their past practices, cancel any debts or other financial obligations owed to the Company or any of the Subsidiaries or settle any litigation related to debts or other financial obligations owed the Company or any of the Subsidiaries;
(ix) other than intercompany debt incurred in the ordinary and usual course of business consistent with their past practices, create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money;
(x) except in the ordinary and usual course of business consistent with their past practices, agree to assume, guarantee, endorse or otherwise become responsible for the debts, liabilities (whether accrued, absolute, contingent or otherwise) or obligations of another Person or make any advances to any other Person in an amount not to exceed One Hundred Thousand ($100,000) in the aggregate;
(xi) enter into, as lessee, into any capitalized lease obligations obligation;
(as defined in Statement of Financial Accounting Standards No. 13), other than xii) except in the ordinary and usual course of business;
(ix) business consistent with their past practices, accelerate or delay collection of any notes or accounts receivable in advance of owed to the Company or any Subsidiary beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business consistent with past practice;
(xxiii) delay or accelerate payment of make any account payable cash or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree payment to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller FDC or any of its Affiliatesaffiliates (other than in connection with trade indebtedness or obligations) or declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of the capital stock of, or equity interests in, the Company or any Subsidiary, other than, in each case, cash dividends paid to FFMC on or prior to December 31, 1997;
(xiixiv) directly or indirectly redeem, purchase or otherwise acquire or commit to acquire any shares of the capital stock of or equity interests in, or effect a split, modification or reclassification of the capital stock of, or equity interests in, the Company or any Subsidiary, or a recapitalization of the Company or any Subsidiary;
(xv) establish, create or institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to its employees, other than as required by any such plan or Requirements of Law or such changes as are applicable to FDC and its subsidiaries generally; provided, however, that the Sellers -------- ------- shall provide the Buyer with written notice of such change at least three (3) business days prior to establishing, creating or instituting any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the CompanyCompany or any of the Subsidiaries; provided, except for payments related further, -------- ------- that if such change is made to stay bonuscomply with any applicable Requirements of Law, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebynotice shall only be required if reasonably practical;
(xiiixvi) except in the ordinary and usual course of business consistent with their past practices, make any material increase change in the compensation of the its employees of the Company, or grant any severance or termination pay other than changes made in accordance with normal compensation practices and consistent with past compensation practices; provided, however, that Sellers shall provide -------- ------- Buyer with written notice at least three (3) business days prior to making any material change in the compensation of the employees of the Company or any Subsidiary notwithstanding that such changes are made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvxvii) make any material change in the accounting policies applied in the preparation of the financial statements Financial Statement contained in Schedule 5.4, unless such 5.5; ------------
(xviii) make any change is required by GAAPin the charter or by-laws of the Company or any of the Subsidiaries;
(xvixix) originateexcept in the ordinary and usual course of business consistent with their past practices, acquire, hold, sell, transfer, securitize delay payment of any account payable or hedge loans secured by real estate; provided that, other liability of the Company or any Subsidiary beyond its due date or the date when such account payable or liability would have been paid in the ordinary course of business consistent with past practice;
(xx) issue or grant any options, warrants or rights to subscribe for or purchase or otherwise acquire, any shares of the capital stock of, or equity interest in, the Company may originate loans secured or any Subsidiary, or issue any securities convertible into or exchangeable for shares of the capital stock of, or equity interests in, the Company or any Subsidiary or commit to any of the foregoing;
(xxi) make any Tax election or change any method of accounting for Tax purposes, in each case except to the extent (x) required by 1-to-4 family residential law or (y) any election or change is made by the Seller Tax Group;
(xxii) except in the ordinary and usual course of business consistent with their past practices, exercise any option to extend a lease for real estate in an aggregate principal amount not property;
(xxiii) other than with respect to exceed $2,000,000 per month; provided further that Seller shall not originate employees at will, enter into any loans secured by real estate on behalf employment agreement, severance or consulting agreement with any Person to the extent such agreement is related to the Company or any Subsidiary;
(xxiv) discharge or terminate any director, officer or senior manager of the Company or transfer any loans secured Subsidiary; provided, however, that Sellers may -------- ------- terminate or discharge any such officer, director or senior manager for cause after providing Buyer with written notice at least one (1) business day prior thereto together with a description, in reasonable detail, of the basis for such termination or discharge;
(xxv) pay any claims against, or liabilities or obligations of, the Company or any Subsidiary in respect of any legal proceedings or any threatened legal proceedings (including settlement of any claims and litigation against the Company or any Subsidiary), which involves the payment by real estate the Company or any Subsidiary in excess of Fifteen Thousand Dollars ($15,000) in the case of any individual payment or One Hundred Twenty Five Thousand Dollars ($125,000) with respect to the Company; oraggregate of all such payments;
(xviixxvi) agree to waive or commit to waive any rights that could reasonably be expected to have a Material Adverse Effect;
(xxvii) directly or indirectly in any way extend or otherwise restructure the payment schedule, payment terms or any other material term or condition of any Business Agreement (other than any contract or agreement with any customer);
(xxviii) fail promptly to pay and discharge current liabilities, except in the case of such liabilities that are disputed in good faith and for which adequate reserves are maintained in accordance with GAAP, as in effect on the Financial Statement Date;
(xxix) make any material change in internal control over financial reportingthe accounting principles and practices used by the Company or any Subsidiary from those applied in the preparation of the Financial Statements, other than any change except to the extent required by GAAP or any change made by Seller and disclosed in writing to the Buyer;
(xxx) except in the ordinary and usual course of business consistent with their past practices with respect to all those actions permitted to be taken by this Section 7.4 in the ordinary and usual course ----------- of its Controlled Affiliates.business, enter into any agreement or contract to take any action prohibited by this Section 7.4; or -----------
(cxxxi) The Company shall keep all insurance policies set forth on Schedule 5.22enter into any contract, agreement, plan, arrangement or suitable replacements therefor, waiver described in full force and effect through the Closing Date.Section 5.7(d) or (g). -------------- ---
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Sellers shall cause the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts Partnership to operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary course and substantially as presently operated. Consistent with In furtherance and not in limitation of the foregoing, Seller the Sellers shall cause the Company Partnership to (i) keep and maintain the material its assets of the Company and properties in good operating condition and repair (normal wear and shall tear excepted), (ii) use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company Partnership intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the Company. In connection therewith, Seller shall notPartnership, and shall not permit the Company to, with respect (iii) use commercially reasonable efforts to any employee of the Company, (i) transfer such employee continue up to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after and including the Closing Date or (iii) otherwise attempt to persuade any all existing policies of insurance in full force and effect and at least at such employee to terminate his or her relationship with levels as are in effect on the Company or not to continue employment with the Company after the Closingdate hereof.
(b) In addition, and without limiting Notwithstanding Section 7.4(a5.3(a), except as expressly contemplated by this Agreement or except with the express prior written approval of Buyer (which Buyer agrees the Purchaser, Sellers shall not be unreasonably withheld permit or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not Partnership to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents)the Partnership Agreement;
(ii) issueissue or agree to issue (by the issuance or granting of options, grant, sell warrants or encumber rights to purchase any shares partnership interest or other equity interest of its capital stock the Partnership or otherwise) any partnership interest or other equity interest of the Partnership or securities exchangeable for or convertible into any partnership interest or other equity interest of the Partnership or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) split, combine or reclassify any Partnership Interest or except as permitted under Section 5.12, declare, set aside or pay or make any change distributions (whether in the Business cash, equity interests or the operations other property) in respect of the Company outside the ordinary course of businessPartnership Interests;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, material change in the ordinary course of Partnership's business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount or its operations not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13)Budget or, other than in the ordinary course of businessbusiness or as contemplated in the Budget, make any expenditure in respect thereof or in respect of the purchase of assets which shall exceed $10,000 in the aggregate.
(v) enter into any material contract, agreement, undertaking or commitment (or any extension or renewal thereof) unless such material contract, agreement, undertaking or commitment permits the Partnership the change in control contemplated in this Agreement;
(ixvi) accelerate amend or delay collection consent to the amendment of any notes contract, agreement, undertaking or accounts receivable commitment listed in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected SCHEDULE 3.12 except for amendments in the ordinary course of the Business Partnership's business consistent with past practicepractices;
(vii) cancel any existing policies or binders of insurance or take or fail to take any action as a result of which insurers under such policies or binders could avoid liability for claims arising thereunder;
(viii) enter into any contract for the purchase of real estate or for the sale of any of the real estate listed in SCHEDULE 3.14 or exercise any option to purchase real estate or enter into any lease of real estate or terminate any lease of real estate listed in SCHEDULE 3.16 or exercise any option to extend a lease listed in SCHEDULE 3.16 without the prior written consent of Purchaser, which consent will not be unreasonably withheld;
(ix) enter into any discussion, negotiation or transaction relating to the merger or consolidation of, or the sale of any partnership interests or other equity interests of the Partnership, or the sale, lease or other disposition of any portion of its properties or business or provide any information to any Person in connection therewith;
(x) delay initiate or accelerate payment of acquiesce in any account payable zoning variation or other liability reclassification of the Company beyond real estate listed in SCHEDULE 3.14 or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceSCHEDULE 3.16;
(xi) except as expressly contemplated by take any action referred to in clauses (a) though (m) of Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates3.8;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained included in Schedule 5.4, unless such change is required by GAAPSCHEDULE 3.5;
(xiii) modify any of the rates charged for cellular service on the Cellular System except for modifications made in the ordinary course of the Partnership's business consistent with past practices;
(xiv) hire any manager or employee;
(xv) enter into or modify any agreements for roaming service except for modifications made in the ordinary course of the Partnership's business consistent with past practices;
(xvi) originate, acquire, hold, sell, enter into any lease or agreement to purchase goods or services involving more than $200,000 which has a term greater than six (6) months or which cannot be terminated by the Partnership without cost or penalty;
(xvii) transfer, securitize assign, pledge, dispose of or hedge loans secured encumber any Interest directly, by real estate; provided thatoperation of law, in merger, consolidation, liquidation or otherwise;
(xviii) incur any indebtedness to any Seller (other than the ordinary course System Manager), an Affiliate of business consistent any Seller or any other Person;
(xix) terminate any Agent except upon a breach by such Agent of its agency contract with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyPartnership; or
(xviixx) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22agree, or suitable replacements thereforcommit to do, in full force and effect through or authorize any of the Closing Dateforegoing.
Appears in 1 contract
Operations Prior to the Closing Date. The Sellers covenant and agree that, except (aw) Except as set forth in Schedule 7.4 or as expressly contemplated by this Agreement or except Agreement, (x) as disclosed in Schedule 7.4, (y) with the prior written approval consent of Buyer, Buyer (which Buyer agrees consent shall not be unreasonably withheld withheld, conditioned or delayed), Seller or (z) as otherwise required by applicable Laws or Orders, subject to any approvals required by the Bankruptcy Court, from and after the Execution Date and until the Closing:
(a) The Sellers shall use its reasonable efforts to operate operate, manage and shall use its reasonable efforts to cause administer the Company to carry on the Business only Assets in the ordinary course a good and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts workmanlike manner consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingtheir past practices.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller The Sellers shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles exercise any election to abandon any Asset (except any abandonment of incorporation or by-laws (or similar organizational documentsLeases to the extent such Leases terminate pursuant to their terms);
(ii) issuepropose or agree to participate in any single operation with respect to the ▇▇▇▇▇ or Leases with an anticipated cost in excess of $200,000.00 (net to the Sellers’ interest), grantexcept for emergency operations, sell or encumber any shares of its capital stock or other securitiesoperations scheduled under the AFEs, or issue, grant, sell or encumber operations required by any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyGovernmental Authority;
(iii) make terminate, cancel or materially amend or modify any change in the Business Assigned Contract or the operations of the Company outside the ordinary course of businessLease;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor)lease, transfer encumber or otherwise dispose of (including any transfers from the Company to Seller all or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement portion of any claims Assets, except with respect to Preferential Rights as provided herein and sales of Hydrocarbons, equipment or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than inventory in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviiv) make enter into any material change in internal control over financial reportingagreement or commitment to take any action prohibited by this Section 7.4. On any matter requiring Buyer’s approval under this Section 7.4, other than any change Buyer shall respond within seventy-two (72) hours from the Sellers’ request for approval (or such shorter period of time as may be required by GAAP or any change made by Seller with respect the applicable operating agreements) and failure of Buyer to all respond within such time period shall release the Sellers from their obligation to obtain Buyer’s approval before proceeding on such matter as the Sellers may elect in their sole discretion. Notwithstanding the foregoing provisions of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements thereforthis Section 7.4, in full force the event of an emergency, the Sellers may take such action as reasonably necessary and effect through shall notify Buyer of such action promptly thereafter. The acts or omissions of third parties who are not controlled Affiliates of the Closing DateSellers shall not constitute a violation of the provisions of this Section 7.4, nor shall any action required by a vote of working interest owners constitute such a violation so long as the Sellers have voted their interests in a manner consistent with the provisions of this Section 7.4.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a)7.4, except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller Aon shall not, cause the Companies and the Subsidiaries to use their reasonable best efforts consistent with respect good business practice to operate and carry on the business of the Companies and the Subsidiaries in the ordinary course and substantially as operated immediately prior to the Equity Interestsdate of this Agreement and consistent with past practice. Consistent with the foregoing, the Company or the Business, and Seller Aon shall cause the Company Companies and the Subsidiaries to use their reasonable best efforts consistent with good business practice to preserve intact the business organization of the Companies and the Subsidiaries and the goodwill of the suppliers, contractors, licensors, employees, customers, agents, producers, distributors and others having business relations with the Companies and the Subsidiaries.
(b) Without limiting the generality of Section 7.4(a), except as set forth in Schedule 7.4, except as contemplated by this Agreement or except with the written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Aon shall not permit the Companies and the Subsidiaries to:
(i) amend its articles make any material change in their business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thattherefor, other than in the ordinary course of business consistent with past practicepractices, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount excess of $250,000, that is not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf terminable without payment of the Company premium or transfer any loans secured by real estate to the Companypenalty within 90 days;
(v) (Aiii) enter into any Contract which would contract for the purchase or sale of real property or lease of Leased Real Property, except any renewals or replacements of existing real property leases;
(iv) cancel any debts owed them other than in the ordinary course of business consistent with past practice or in accordance with Section 7.5 or make any loans, advances, capital contributions to, or investments in, or receive any capital contributions from, any other Person, other than (i) for immaterial amounts in the ordinary course of business consistent with past practice or (ii) ordinary course investment portfolio transactions in accordance with investment guidelines that have been a Company Agreement if in effect adopted by the Companies or the Subsidiaries on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on prior to the date hereof;
(viv) sell, agree to sell, lease (as lessor), transfer or otherwise dispose of (including other than any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of their assets, tangible or intangible, product lines or business, except for (Ai) the Equity Interests assets sold or (B) the assets or properties otherwise disposed of the Company, other than, in the case ordinary course of this clause business consistent with past practice with an aggregate value not exceeding $250,000 and (B), ii) Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiivi) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), ) other than in the ordinary course of businessany indebtedness that is subject to Section 7.5;
(ixvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentsin accordance with Section 7.6) to Seller Aon or any of its Affiliates;
(xiiviii) institute any material increase in any benefit provided under any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare welfare, severance or other employee benefit plan with respect to maintained for their employees of (excluding any arrangements that do not involve payments by the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement Companies or the transactions contemplated herebySubsidiaries after the Closing), other than as required by any such plan or Requirements of Law, any change generally applicable to Aon employees or any in the ordinary course consistent with past compensation practices;
(xiiiix) make any material increase change in the cash compensation of their employees (excluding any arrangements that do not involve payments by the employees of Companies or the CompanySubsidiaries after the Closing), other than changes made in accordance with normal compensation practices or pursuant to existing contractual commitments and consistent with past compensation practices;
(Ax) except as required by applicable Requirements enter into, materially amend, renew, terminate or grant any release or relinquishment of Lawrights under any Business Agreement, prepare or file any Tax Return inconsistent in each case other than in the ordinary course of business consistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxespractice;
(xvxi) make any material change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAP;
(xvixii) originatemake any material change in the accounting policies applied in the preparation of the Statutory Statements, acquireunless such change is required by SAP;
(xiii) make any material change with respect to actuarial, holdclaims management or reserving methodologies, in each case except as may be required to comply with changes in Requirements of Law, GAAP or SAP;
(xiv) make any change in their charters or by-laws or similar governing instrument or issue, deliver, sell, transferpledge, securitize dispose of, encumber, split, combine or hedge loans secured reclassify any capital stock or other equity interest or other right of any kind to acquire or receive any capital stock or equity interest (or securities exchangeable, convertible or exercisable for capital stock or other equity interest) in any of the Companies or Subsidiaries;
(xv) (v) make or rescind any material election relating to Taxes other than as mandated by real estate; provided thatRequirements of Law, (w) make a request for a material Tax ruling or enter into any agreement with an Administrative Authority with respect to Tax matters, in each case, which could result in an adverse effect, (x) settle or compromise any claim, litigation, controversy or other proceeding relating to Taxes, to the extent the amount of such settlement is equal to or greater than $50,000, (y) file any amendments to any previously filed Tax Returns that could adversely affect the Taxes of the Companies and Subsidiaries, or surrender any right to claim a Tax refund or credit for Taxes in excess of $50,000 other than by expiration of the applicable statute of limitations, or (z) file any Tax Return in a manner that is inconsistent with past custom and practice, except as may be required by a change in Requirements of Law;
(xvi) hire any new employee, except in the ordinary course of business consistent with past hiring practices or to replace a terminated employee;
(xvii) other than in the ordinary course of business consistent with past practice, issue, reinsure or sell new kinds of policies, or amend existing kinds of policies, except to the Company may originate loans secured extent required by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured Requirements of Law;
(xviii) acquire (A) by real estate on behalf merger or consolidation with, or by the purchase of all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (B) any assets that are material, in the aggregate, to the Companies and the Subsidiaries taken as a whole;
(xix) settle or comprise any claim against the Companies or the Subsidiaries by any Administrative Authority or other Person that would reasonably be expected to materially impair the core business of such Company or transfer Subsidiary;
(xx) waive the benefits of, agree to modify in any loans secured adverse manner, terminate or release any Person from any confidentiality, standstill or similar contract to which it is a party, which covers or relates to its business, assets or properties or to which it is a beneficiary;
(xxi) compromise or settle any insurance claim (including any proceeding with respect to an insurance claim) where such compromise, settlement or agreement involves extra-contractual liabilities or the admission, acknowledgement or stipulation that the Companies or the Subsidiaries acted in bad faith, in each case other than in the ordinary course of business consistent with past practice;
(xxii) take any action to forfeit, abandon, modify, waive, terminate or otherwise adversely change any of its material insurance licenses or other material Governmental Permits except as may be required by real estate to any applicable Requirements of Law;
(xxiii) manage their investment portfolios in a manner materially inconsistent with their investment policies in effect as of the Companydate hereof or cause or permit the sale of Sterling’s investment assets other than in the ordinary course of business consistent with past practice; or
(xviixxiv) make authorize any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22of, or suitable replacements thereforcommit or agree, in full force and effect through writing or otherwise, to take any of the Closing Dateforegoing actions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aon Corp)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Sellers shall maintain the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to Purchased Assets and operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially consistent with past practice in conformance with all Legal Requirements, except as presently operatedotherwise expressly provided in this Agreement. Consistent with the foregoingforegoing and to the extent permitted or required by the Bankruptcy Case, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and Sellers shall use its reasonable best efforts consistent with good business practice to continue operating the Business as a going concern, and to maintain the business organization of the Company Business intact and to preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, no Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from the Business any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller for any period on or an Affiliate of Seller after the Closing Date to any such employee or agent regarding whom Buyer makes offers of employment (if any), or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company Business, except, in the case of (i), (ii) and (iii), as disclosed to Buyer in writing prior to the date hereof or not to continue employment with the Company after the Closingprior written consent of Buyer.
(b) In additionExcept as otherwise expressly provided in this Agreement, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, no Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toshall:
(i) amend its articles make any capital expenditure in excess of incorporation $400,000 in the aggregate with respect to the Business or by-laws (enter into any Contract or similar organizational documents)commitment therefor, except in each case in the ordinary course of Business pursuant to existing Contracts or as funded with insurance proceeds following a casualty event;
(ii) issue, grant, sell enter into any Contract for or encumber any shares relating to the Business that cannot be assigned to Buyer or a permitted assignee of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure Buyer under Section 11.4 solely with approval of the CompanyBankruptcy Court;
(iii) make acquire, or enter into any change in Contract for the Business or the operations of the Company outside the ordinary course of businesspurchase of, real property (other than as contemplated by clause (v) below);
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess lease of $50,000; provided that, real property;
(v) other than the sale of Inventory in the ordinary course of business the Business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential sale of certain real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate and related personal property as described on behalf Schedule 7.5(b)(v), sales of the Company obsolete or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereofworn out Equipment or other immaterial individual assets, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers transfer from the Company Business to Seller or any Affiliates of its AffiliatesSellers), or mortgage or pledge, or impose or suffer to be imposed imposed, any Encumbrance on, on (other than Assumed Liabilities or Permitted Encumbrances or liens securing the DIP Credit Agreement) any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted EncumbrancesPurchased Assets;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigationvi) other than in the ordinary course of the Business consistent with past practice, purchase any material assets;
(vii) cancel or settle any material debts owed to or material claims held by the Business (including the settlement of any claims or litigation) other than the compromise of Accounts Receivable in the ordinary course of Business consistent with past practice or matters related exclusively to Excluded Assets;
(viii) createcompromise, incur or assumesettle, or agree consent to create, incur or assumejudgment in, any Indebtedness one or enter intomore Actions or institute any Action if the Action involves or is expected to involve more than $150,000, including concerning any Intellectual Property, except as lessee, any capitalized lease obligations (as defined in Statement it relates exclusively to the collection of Financial Accounting Standards No. 13), other than Accounts Receivable if in the ordinary course of businessthe Business or Excluded Assets;
(ix) enter into, or agree to enter into, any sale-leaseback transactions;
(x) except in the ordinary course of business consistent with past practices, accelerate or delay collection of any notes or accounts receivable Accounts Receivable generated by the Business in advance of or beyond their regular due dates dates;
(xi) except in the ordinary course of the Business consistent with past practice, collect or agree to collect any such receivable for less than the dates involving more than $25,000 when amount billed therefor;
(xii) delay or accelerate payment of any account payable or other liability of the same would have been collected Business beyond or in advance of its due date, except in the ordinary course of the Business consistent with past practice;
(xxiii) delay or accelerate payment of any account payable or other liability allow the Inventory level to decline below the level necessary for the continued operation of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceBusiness;
(xixiv) except as expressly contemplated by Section 7.9fail to maintain any material portion of the tangible Purchased Assets in their present condition, make, or agree to make, any distribution or other disposition of assets (other than cash reasonable wear and cash equivalents) to Seller or any of its Affiliatestear excepted;
(xiixv) institute any material increase (including any increase in coverage) in any profit-sharing, bonus, incentive, deferred compensation, severance insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to directors, officers or employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAPSeller;
(xvi) originateincrease the compensation (including salary, bonus or incentive compensation) of the directors, officers, employees of, or independent contractors or consultants to, any Seller, except for increases that are not material or are otherwise in the ordinary course of business, provided that Sellers may institute a key-employee retention plan, not to exceed $1,000,000 in aggregate value, which shall not constitute a Transferred Employee Plan and the terms and conditions of which shall be approved by the Bankruptcy Court;
(xvii) enter into or amend any Collective Bargaining Agreement;
(xviii) enter into any employment, deferred compensation, severance, consulting, independent contractor, nondisclosure, non-competition or similar agreement (or amend in any material manner that is adverse to the Business any such agreement) to which any Seller is a party or involving any of its directors, officers or employees in his or her capacity as a director, officer or employee of such Seller, except in the ordinary course of business;
(xix) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock, membership interests or other equity interests of any of Sellers, or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock, membership interests or other securities of, or other ownership interests in, any of Sellers;
(xx) transfer, issue, sell or dispose of any shares of capital stock or other securities of Sellers, provided that Sellers may transfer or sell any such interest in VVP Auto Glass, Inc. to Vitro, S.A.B. de C.V. or any of its Affiliates;
(xxi) grant or acquire, holdfrom any Person, sellor dispose of or permit to lapse any rights to, transferany Intellectual Property, securitize or hedge loans secured by real estate; provided that, except in the ordinary course of business consistent with past practice (but solely to the extent such act would not reasonably be expected to materially adversely impact the Business), or disclose to any Person, other than representatives of Buyer or other Qualified Bidders (subject to written confidentiality obligations adequate to protect the proprietary nature thereof), any Trade Secret;
(xxii) grant or exercise options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of Sellers;
(xxiii) except for the DIP Credit Agreement and related loan documents, enter into or amend any agreement in any material manner that is adverse to the Business (or incur any commitment) that involves or may involve total annual expenditure or revenues (individually or in the aggregate) in excess of $250,000, except for contracts for the sale of goods or services to customers in the ordinary course of the Business consistent with past practice;
(xxiv) except pursuant to the DIP Credit Agreement, incur any indebtedness for borrowed money (including any intra-group borrowings), enter into any material guarantee, indemnity or other agreement to secure any obligation of a third party or create any Encumbrance (other than Permitted Encumbrances) for the benefit of a third party over any of the Purchased Assets, except in the ordinary course of the Business consistent with past practice;
(xxv) make any payment, or otherwise remit any monies, to any Affiliates of Seller for any purpose whatsoever, provided the foregoing does not restrict intercompany transfers, payables or receivables among Sellers or reimbursements to Vitro, S.A.B. de C.V. or certain of its subsidiaries with respect to information technology services, in each case made in the ordinary course of the Business consistent with past practice and with the approval of the Bankruptcy Court;
(xxvi) incur any material Liability except for the DIP Credit Agreement or otherwise in the ordinary course of the Business consistent with past practice;
(xxvii) change any accounting or Tax policy or practice except in the ordinary course of the Business;
(xxviii) amend the certificate of incorporation or by-laws or comparable organization documents of any Seller in any material respect;
(i) modify in any material manner that is adverse to the Business or terminate (except for scheduled terminations) any Assumed Contract or any Assumed Lease (other than in the ordinary course of the Business), or (ii) enter into or modify any contract containing material penalties which would be payable as a result of, and upon the consummation of, the Company may originate loans secured transaction contemplated by 1-to-4 family residential real estate this Agreement;
(xxx) fail to maintain any of Sellers’ material business records in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyaccordance with past practice; or
(xviixxxi) make enter into any material change in internal control over financial reporting, other than agreement or commitment to take any change required action prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 7.5.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its respective reasonable best efforts to maintain and repair the Purchased Assets and operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially consistent with past practice, except as presently operatedotherwise expressly provided in this Agreement, consented to by Buyer, or as required by the Orders of the Bankruptcy Court. Consistent with Without limiting the foregoinggenerality of the foregoing and to the extent permitted or required by the Orders of the Bankruptcy Court or the Bankruptcy Code, Seller shall cause continue operating the Company to keep Business as a going concern and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company Business intact and shall use reasonable best efforts to preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewiththerewith and without limiting the generality of the foregoing, Seller shall not, and shall not permit the Company todirectly or indirectly, with respect do or propose to do any employee of the Company, following without the prior written consent of Buyer:
(i) transfer such employee to Seller or an Affiliate of Seller, (iia) offer such employee employment by Seller for any period on or an Affiliate of Seller after the Closing Date to any employee or agent of the Business regarding whom Buyer makes offers of employment in accordance with the terms set forth herein;
(iiib) otherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect Business prior to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents)Closing Date;
(iic) issue, grant, sell or encumber any shares of its capital stock or other securitiesfail to maintain and repair, or issuedelay the maintenance and repair, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyRental Equipment in a manner consistent with normal industry practice;
(iiid) make enter into any change commitment or transaction not in the Business or the operations of the Company outside the ordinary course of business, except for any such commitment or transaction required by this Agreement and/or the Orders of the Bankruptcy Court or the Bankruptcy Code;
(ive) make amend or otherwise modify the material terms of any capital expenditure Assumed Agreement or enter into Permits, except for any contract such amendment or commitment therefor in excess other modification required by the Orders of $50,000the Bankruptcy Court; provided thatand
(f) sell, lease, license or otherwise dispose of any of the Purchased Assets (other than sales of Rental Equipment in the ordinary course of business and consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf ) outside of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of , except for any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9sale, makelease, or agree to make, any distribution license or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees required by the Orders of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement Bankruptcy Court or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBankruptcy Code.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 required by applicable Requirements of Law or as contemplated by this Agreement or except with the prior written approval consent of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its commercially reasonable efforts to, and shall cause the Acquired Companies to use their commercially reasonable efforts to, operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course consistent with past practice and substantially as presently operated. Consistent operated immediately prior to the date of this Agreement, including with respect to the foregoing, Seller shall cause the Company to keep and maintain the material assets preservation of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokers, lenders customers and distributors of the Acquired Companies and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcquired Companies.
(b) In addition, and without Without limiting the generality of Section 7.4(a6.4(a), except as expressly set forth in Schedule 6.4, as contemplated by this Agreement Agreement, required by applicable Requirements of Law or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company Acquired Companies not to:
(i) amend its articles make any material change in the lines of incorporation or by-laws (or similar organizational documents)business of the Business;
(ii) issue, grant, sell purchase or encumber otherwise acquire any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities assets or make any other changes capital expenditures, in each case that are material, individually or in the equity aggregate, to the Business, other than such acquisitions or capital structure of the Companyexpenditures that do not exceed $ 750,000;
(iii) make sell, lease or otherwise transfer or dispose of any change assets, properties or interests of any of the Acquired Companies that are material, either individually or in the aggregate, to the Business, other than (A) any such sale, transfer or disposition to an Acquired Company, (B) the sale of inventory in the ordinary course of business and (C) the disposition of obsolete or certain other assets not used in the Business or during the operations of twelve (12) months preceding the Company outside date hereof in the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatcreate, in the ordinary course of business consistent with past practiceincur, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer assume or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assumebecome liable, or agree to create, incur incur, assume or assumeotherwise become liable, with respect to any Indebtedness or enter intogrant any Encumbrance with respect to the assets of any of the Acquired Companies, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), each case other than Permitted Encumbrances;
(v) make any loan to any third party other than trade payables in the ordinary course of business;
(vi) materially increase the benefits available to any current or former employee of the Acquired Companies, other than as required by the terms of any Plan or Contract set forth in Schedule 4.15(a) or as required pursuant to or advisable to comply with Requirements of Law;
(vii) materially increase the base salary, wages or bonus opportunity of any employee of the Acquired Companies, except as required by the terms of any Plan or Contract set forth in Schedule 4.15(a);
(viii) establish, adopt, amend or terminate any Plan, except as advisable to comply with Requirements of Law;
(ix) accelerate acquire by merging or delay collection of any notes consolidating with, or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course by purchasing a substantial portion of the Business consistent with past practicecapital stock or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(x) delay terminate, materially adversely modify or accelerate payment amend any Material Contract, or enter into any Contract that would be a Material Contract if in existence as of the date hereof, other than ordinary course renewals of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practiceMaterial Contract;
(xi) except as expressly contemplated by Section 7.9terminate, makematerially modify, amend or agree exercise any option to makeextend a Lease Agreement, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or ordinary course renewals of any of its Affiliatessuch Lease Agreement;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting methods or policies applied in the preparation of the financial statements contained in Schedule 5.4Acquired Companies, unless such change is required by GAAP;
(xiii) issue, deliver or sell any securities of any of the Acquired Companies or enter into, issue or grant any agreements, arrangements, options, warrants, puts, calls, subscriptions, rights, claims or commitments of any character relating to the issuance, sale, purchase, redemption, conversion, exchange, registration, voting or transfer of any capital stock or other equity interests or securities of any of the Acquired Companies;
(xiv) amend the Organizational Documents of any of the Acquired Companies;
(xv) enter into or materially amend any Collective Bargaining Agreement;
(xvi) originatemake or change any material Tax election, acquirefile any material amendment to a filed income Tax Return, holdenter into any closing agreement, settle any material Tax claim or assessment relating to any of the Acquired Companies, surrender any rights to claim a material refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to any of the Acquired Companies, if such action would materially increase the Tax Liability of any of the Acquired Companies for any taxable period ending after the Closing Date;
(xvii) effect any dissolution, winding-up, liquidation or termination of any of the Acquired Companies;
(xviii) cancel or terminate any insurance policy without obtaining substantially comparable substitute insurance coverage;
(xix) effectuate a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act) affecting in whole or in part any site of employment, facility, operating unit or employees;
(xx) sell, transfer, securitize license, sublicense or hedge loans secured by real estate; provided thatotherwise dispose of any Intellectual Property, in the ordinary course of business consistent or amend or modify any existing agreements or rights with past practicerespect to any material Intellectual Property of, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate or used by, any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyAcquired Companies; or
(xviixxi) make agree to do any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with During the written approval of Buyerperiod prior to the Closing Date, which Buyer agrees the Sellers shall not be unreasonably withheld or delayed, Seller shall use cause the Company and its reasonable efforts Subsidiaries to operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Sellers shall cause the Company and its Subsidiaries to keep and maintain the material assets and properties of the Company Group in good operating condition and repair and shall use its reasonable their best efforts consistent with good business practice to maintain the business organization of the Company and its Subsidiaries intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyCompany and its Subsidiaries. In connection therewith, Seller shall not, and Sellers shall not (nor permit the Company or any Subsidiary to, with respect to any employee of the Company, ) (i) transfer such or cause to be transferred from the Company or any Subsidiary any employee to Seller or an Affiliate of Selleragent thereof, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingany Subsidiary.
(b) In additionDuring the period prior to the Closing Date, Sellers shall:
(i) use all reasonable endeavors to procure that the Company amend the non-compete obligations in the employment contracts between the Company and without limiting Section 7.4(a)▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ to a form satisfactory to Buyer;
(ii) use all reasonable endeavors to make such amendments to the website of the Group as shall be required by Buyer in order to comply with the French Internet and “Informatique et Libertés” (software and freedom) regulation;
(iii) use all reasonable endeavors to obtain from the developers of the website of the Group an assignment to the Company of all Intellectual Property in relation to such website;
(iv) use all reasonable endeavors to obtain from Biotest Seralc, Agensys Technology, Sybase Technology and Haema their agreement on the continuation of their softwares distribution contract after the purchase transactions contemplated by this Agreement;
(v) approve the sale and transfer of the shares in GLI held by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to the Buyer as set out in Annex 1 of the German Transfer Deed and enter into the German Transfer Deed in due form to be agreed upon by the parties;
(c) During the period prior to the Closing Date, except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees Buyer, Sellers shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, permit the Company or the Business, and Seller cause the Company not any Subsidiary to:
(i) amend its articles certificate of incorporation or by-laws (or similar organizational documents)laws;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or ; issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business business or the operations of the Company outside Group or make any expenditure which shall exceed the ordinary course of businessamount budgeted therefor;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, ¬10,000 per individual item or ¬25,000 in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companyaggregate;
(v) (A) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 4.16 if in effect on the date hereof, (B) hereof or enter into any Contract contract which would require requires the consent or approval of a any third party in connection with the consummation of to consummate the transactions contemplated by this Agreement Agreement; or (C) modify, amend, terminate or grant make any consent or waiver under material modification to any existing Company Agreement or to any Contract that would have been a Company Agreement if it were Governmental Permits, other than changes made in effect on the date hereofgood faith to cure document deficiencies;
(vi) enter into any contract for the purchase, lease (as lessee) or other occupancy of real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in Schedule 4.10(A) or any option to extend a lease listed in Schedule 4.10(B);
(vii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliatesthe Subsidiaries to any Seller), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyGroup, other than, than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the case ordinary course of this clause (B), Permitted Encumbrancesbusiness consistent with past practice;
(viiviii) cancel any debts owed to or claims held by the Company Group (including the settlement of any claims or litigation) other than in the ordinary course of the Business business consistent with past practice;
(viiiix) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixx) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business consistent with past practice;
(xxi) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practice;
(xixii) except as expressly contemplated by Section 7.9allow the levels of raw materials, supplies, work-in-process or other materials included in the inventory of the Group to vary in any material respect from the levels customarily maintained;
(xiii) make, or agree to make, any payment of cash or distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its AffiliatesSellers;
(xiixiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated herebyGroup;
(xiiixv) make any material increase change in the compensation of the employees of the CompanyGroup, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Axvi) except as required by applicable Requirements make any material change in the accounting policies applied in the preparation of Law, the financial statements contained in Schedule 4.4;
(xvii) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods that which would have the effect of deferring income to periods ending after the Closing Date for which Buyer is liable pursuant to Section 9.1(b) or accelerating deductions to periods ending on or before the Closing Datefor which Sellers are liable pursuant to Section 9.1(a), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviixviii) make enter into any material change in internal control over financial reporting, other than agreement or commitment to take any change required action prohibited by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesthis Section 6.4.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Med Technologies Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 Subject to Section 6.4(b) hereof or as expressly contemplated by this Agreement or except with Agreement, from the written approval of Buyerdate hereof through the Closing Date, which Buyer agrees the Company and the Subsidiaries taken as a whole shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business their businesses only in the ordinary course course. In furtherance and substantially as presently operated. Consistent with not in limitation of the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its commercially reasonable best efforts consistent with good business practice to (i) keep and maintain the assets and properties of the Company and the Subsidiaries in normal operating condition and repair, (ii) maintain the business organization of the Company and the Subsidiaries, as a whole, intact and (iii) preserve the goodwill of the suppliers, employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, Company and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiaries.
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with as set forth in SCHEDULE 6.4, neither the Company nor any Subsidiary shall without the express prior written approval of Buyer Purchaser (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:withheld):
(i) amend its articles of incorporation organization or by-laws (bylaws or similar organizational documents)the Certificate of Designations;
(ii) issue, granttransfer, sell or encumber deliver any shares of its capital stock (or options or other securities convertible into or exchangeable or exercisable for, with or without additional consideration, such capital stock) or any other interest therein, except (A) in connection with the exercise of Company Options granted prior to the date hereof pursuant to the Company Option Plan or (B) in connection with the issuance of any Company Options surrendered or any Shares repurchased after the date hereof and prior to the Closing as determined by the Board of Directors of the Company (provided that such issuances shall not result in an increase in the aggregate consideration payable pursuant to Article II hereof based on the accuracy of the representations and warranties set forth in Section 3.2 hereof);
(iii) split, combine or reclassify any shares of its capital stock or declare, set aside or pay any dividends or make any other securitiesdistributions (whether in cash, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription stock or other right property) in respect of such shares, except for dividends and distributions payable by a Subsidiary to another Subsidiary or to the Company;
(iv) redeem, purchase or otherwise acquire for any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of consideration (A) any outstanding shares of its capital stock or securities carrying the right to acquire or which are convertible into or exchangeable or exercisable for, with or without additional consideration, such capital stock, (B) any other securities or make any other changes in the equity capital structure of the CompanyCompany or any Subsidiary, or (C) any interest in any of the foregoing, except as contemplated by this Agreement and the redemption or repurchase of shares of Class C Stock from employees in connection with the termination of such employee's employment;
(iiiv) make incur any change indebtedness for borrowed money, except borrowings in the Business or the operations of the Company outside the ordinary course of businessbusiness under the revolving portion of the Senior Credit Agreement consistent with the Company's historical practice and the budget provided to Purchaser;
(ivvi) make any capital expenditure acquisition or enter into disposition of stock or other securities or assets of any contract Person or commitment therefor in excess materially increase inventory levels of $50,000; provided that, the Company or any Subsidiary except acquisitions or dispositions of inventory and equipment in the ordinary course of business consistent with past practice, practice and the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not budget provided to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted EncumbrancesPurchaser;
(vii) cancel any debts owed incur capital expenditures materially in excess of those contemplated by the budget previously provided to or claims held Purchaser by the Company or defer or cancel any such material contemplated expenditures;
(including viii) merge or consolidate with any corporation or other entity;
(ix) enter into any employment or similar contract with, or materially increase the settlement of compensation payable to, any claims officer, director or litigation) other than employee except in the ordinary course of the Business consistent with past practicebusiness and not to exceed annual compensation in excess of $200,000 for any individual;
(viiix) alter in any material respect its historical practices and policies relating to the payment and collection of accounts payable and accounts receivable as reflected in the budget previously provided to Purchaser;
(xi) except as contemplated by or described in this Agreement, adopt, amend in any material respect or terminate any Employee Plan, severance plan or collective bargaining agreement or make awards or distributions under any Employee Plan, except awards or distributions to any participant or employee in the ordinary course, not to exceed $50,000 in the aggregate;
(xii) create, incur assume or assume, suffer to be incurred any Encumbrance of any kind on any of its properties or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), assets other than Permitted Encumbrances excluding from the definition of Permitted Encumbrances for purposes of this clause (xii) only, liens securing indebtedness for borrowed money except any such liens created pursuant to the Senior Credit Agreement;
(xiii) amend, supplement or modify any agreement material to the Company and its Subsidiaries taken as a whole except in the ordinary course of business;
(ixxiv) accelerate or delay collection of make any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of principal or interest on the Notes, under the Senior Credit Agreement, or under any account payable or other liability indebtedness of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
Subsidiaries other than: (xia) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice the terms and as set forth in SCHEDULE 6.4 and (ii) on the revolving loans under the Senior Credit Agreement; or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make commit to do any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesforegoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Tribune shall cause ------------------------------------ the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts Company to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Tribune shall cause the Company and the Subsidiaries to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, Company and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingSubsidiaries.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated -------------- by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller from and after the Balance Sheet Date, Tribune shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toand the Subsidiaries to not:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any material change in the Business or the operations of the Company outside and the ordinary course of businessSubsidiaries;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (Aii) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule 5.17 if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in ------------- effect on the date hereof;
(viiii) sell, lease (as lessor), transfer or otherwise dispose enter into any contract for the purchase of (including any transfers from the Company to Seller real property or any of its Affiliates), or mortgage or pledge, or impose or suffer option to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, extend a lease listed in the case of this clause (B), Permitted Encumbrances;Schedule 5.10; -------------
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viiiiv) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money (other than money borrowed from or advances from Tribune or any of its Affiliates in the ordinary course of business) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, . insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to its employees of the CompanyCompany or any Subsidiary or declare or pay any dividend or redeem any capital stock or repay any intercompany indebtedness; provided, except for payments related however, that the restrictions set forth in this -------- ------- clause (v) shall not prohibit the Company from (i) distributing to stay bonus, transaction completion bonus, severance payments Tribune or other similar payments made on or an Affiliate of Tribune prior to the Closing Date as a result the proceeds from the sale of this Agreement the Real Property and (ii) repaying to Tribune or an Affiliate of Tribune prior to the transactions contemplated herebyClosing Date intercompany indebtedness owed to Tribune or an Affiliate of Tribune in an amount not to exceed actual cash advances made by Tribune or an Affiliate of Tribune to the Company from and after January 1, 1997;
(xiiivi) make any material increase change in the compensation of the employees of the CompanyCompany or any Subsidiary, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;; or
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvvii) make any material change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBalance Sheet.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees The Parent shall not be unreasonably withheld or delayed, Seller shall cause each Selling Subsidiary to (i) use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course Ordinary Course of Business and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall (ii) use its reasonable best efforts efforts, consistent with good business practice practice, to maintain preserve intact the business organization of the Company intact Business and preserve the goodwill of the suppliers, contractors, employees, brokers, lenders customers and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, it with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingBusiness.
(b) In addition, and without limiting Section 7.4(aNotwithstanding SECTION 8.6(A), except as expressly contemplated by this Agreement or except with the express written approval of Buyer the Purchaser (which Buyer the Purchaser agrees shall not be unreasonably withheld or delayed), Seller shall notneither the Parent nor any Selling Subsidiary shall, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toexcept as allowed on SCHEDULE 8.6:
(i) amend its articles other than is required pursuant to a Law, or otherwise if outside of incorporation the control of the Parent or by-laws any Selling Subsidiary, take or allow to occur any action listed in subparagraph (a) through (m) of SECTION 6.16 or similar organizational documents)that would cause any representation or warranty to be untrue at the Closing;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement Material Contract if in effect on the date hereofhereof or amend or modify any Material Contract other than Contracts with existing vendors (other than for capital items) or customers in the Ordinary Course of Business or new vendors or customers so long as the amount for any one vendor or customer does not exceed $100,000 in the aggregate; or
(iii) establish, introduce, or manufacture any product that would constitute a new or promotional SKU.
(c) The Parent will (A) confer on a regular and frequent basis with representatives of the Purchaser to report operational matters and the general status of ongoing operations as reasonably requested by the Purchaser and (B) enter into not take any Contract action that would render, or which would require the consent of a third party reasonably may be expected to render, any representation or warranty made by it in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on untrue at the date hereof;Closing.
(vid) sell, lease (as lessorIn addition to the requirements of Section 8.6(a), transfer or otherwise dispose of (including any transfers from Parent and the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, Selling Subsidiaries shall not use extraordinary selling efforts in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income accelerating sales of the Business prior to periods ending after the Closing Date time reasonably expected, through offering of discounts, shipment of goods prior to anticipated shipping dates or accelerating deductions to periods ending on or before otherwise. Notwithstanding the Closing Dateforegoing and SECTION 8.6(A), or (B) settle or otherwise compromise any claim related Parent and the Selling Subsidiaries may manage their production of Inventory to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount allow Qualified Inventory not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf the Maximum Qualified Inventory, the SKU Quantity Limit and the SKU Life Limitation as of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
(e) Parent and the Selling Subsidiaries shall use their commercially reasonable efforts to secure the execution by Keebler Company of that certain Supply Agreement with Foil dated as of November 19, 2002.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Until the written approval of BuyerClosing, which Buyer agrees the Company shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business its business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to shall (i) keep and maintain the material Company's assets of the Company in good operating condition and repair and shall repair, (ii) use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with it and (iii) continuously maintain insurance coverage substantially equivalent to that presently maintained by the Company. In connection therewithThe Sellers shall use all reasonable efforts, Seller shall notconsistent with past practices, to promote the Company's business and to maintain the reputation associated with the Company's business, and shall not permit the Company totake or omit to take any action which causes, with respect or which is likely to cause, any employee deterioration of the Company, (i) transfer such employee to Seller 's present business or an Affiliate of Seller, (ii) offer such employee employment by Seller relationships with suppliers or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingcustomers.
(b) In addition, and without limiting Section 7.4(aNotwithstanding SECTION 5.3(a ), except as expressly contemplated by this Agreement Agreement, or except with the express written approval of the Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller the Company shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into or modify any contract contract, agreement, undertaking or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement required to be set forth on SCHEDULES 4.24, 4.25, 4.26 or 4.28, if in effect on the date hereof, (B) hereof or enter into any Contract contract which would require cannot be assigned to the consent of Buyer or a third party in connection with the consummation permitted assignee of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver Buyer under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSECTION 8.3;
(viii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to any Seller or any of its or their Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance (except Permitted Encumbrances) on, any of (A) the Equity Interests or (B) the assets or properties of the Company's Assets, other than, in the case than inventory and minor amounts of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to personal property sold or claims held by the Company (including the settlement otherwise disposed of any claims or litigation) other than in the ordinary course of the Business business consistent with past practicepractices;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ixiii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business business, consistent with past practicepat practices;
(xiv) delay or accelerate payment of any account acco▇▇▇ payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business business consistent with past practicepractices;
(xiv) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentscash) to any Seller or any of its or their Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiiivi) make any material increase change in the compensation of the employees of the Companyits employees, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(Avii) except as required by applicable Requirements allow its levels of Lawinventory to vary in any material respect from the levels customarily maintained;
(viii) permit to lapse any of its rights to the Intangible Property listed on SCHEDULE 4.19;
(ix) issue, prepare sell or file authorize for issuance or sale any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, securities or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance commitment with respect to Taxesthe foregoing;
(xvx) make redeem, purchase or otherwise acquire, directly or indirectly, any change in the accounting policies applied in the preparation shares of the financial statements contained in Schedule 5.4its capital stock or any option, unless warrant or other right to purchase or acquire any such change is required by GAAPshares;
(xvixi) originatedeclare or pay any dividend or other distribution (whether in cash, acquirestock or other property) with respect to its capital stock;
(xii) create, holdincur or assume any liability or indebtedness for borrowed money, sell, transfer, securitize or hedge loans secured by real estate; provided that, except in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate practices but in no event in an aggregate principal amount not exceeding $20,000;
(xiii) make or commit to exceed make any capital expenditures in excess of $2,000,000 per month; provided further that Seller shall not originate 20,000 in the aggregate;
(xiv) cancel or waive any loans secured material debts, claims or rights or write off the value of any inventory or accounts receivable or increase the reserve for uncollectible receivables or obsolete, damaged or otherwise unsalable inventory, except as required by real estate generally accepted accounting principles or by law;
(xv) make any loans, advances or capital contributions to any Person, except routine advances to employees in the ordinary course of their business in non-material amounts or enter into any termination or severance arrangement with any employee or consultant;
(xvi) take any action which could reasonably be expected to have a material adverse affect on behalf the business, assets, operations or prospects of the Company or transfer any loans secured by real estate to the Assets of the Company; or;
(xvii) make apply any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.assets to the direct or indirect payment, prepayment, discharge, satisfaction or reduction of any amount payable, directly or indirectly, to or for the benefit of any Affiliate of any Seller or the Company (except for salary and benefits as currently in effect and except in accordance with existing agreements and arrangements which have been disclosed to the other parties hereto in writing);
(cxviii) The guaranty any obligation of any Person or enter into or modify any arrangement with any Affiliate of any Seller or the Company;
(xix) agree, whether in writing or otherwise, to do any of the foregoing;
(xx) take any action that could cause the representations and warranties of the Company shall keep all insurance policies or the Sellers set forth on Schedule 5.22, or suitable replacements therefor, in full force herein not to be true and effect through correct at and as of the Closing Date.Date as if made at as of each such time; or
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as required by Requirements of Law, as set forth in Seller Schedule 7.4 or 7.4, as contemplated by otherwise required to effectuate this Agreement and the transactions contemplated hereby, or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedParent, Seller shall use its reasonable efforts cause the Company and the Subsidiaries to operate and shall use its reasonable efforts to cause the Company to carry on the Business only their business in the ordinary course and substantially as presently operatedcourse. Consistent with the foregoing, Seller shall cause the Company and the Subsidiaries to keep and maintain the material assets of the Company in good operating condition and repair and shall use its their commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the clients, employees, brokers, lenders customers and others having business relations with the CompanyCompany and the Subsidiaries. In connection therewith, Seller shall not, and directly or indirectly, sell, transfer, pledge, assign or otherwise dispose of or enter into any contract, option, commitment or other arrangement or understanding with respect to the sale, transfer, pledge, assignment or other disposition of, the Shares or any of the other capital stock or other ownership interests of the Company or any of the Subsidiaries other than as contemplated by this Agreement. Seller shall not permit GFTC, on the Company toone hand, and the Non-GFTC Subsidiaries, on the other hand, to enter into intercompany transactions with respect to any employee each other outside of the Company, (i) transfer such employee to Seller or an Affiliate ordinary course of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closingbusiness.
(b) In addition, and without limiting Notwithstanding Section 7.4(a), except as expressly contemplated by set forth in Seller Schedule 7.4, as otherwise required to effectuate this Agreement and the transactions contemplated hereby or except with the express written approval of Buyer Parent (which Buyer Parent agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall not, with respect to the Equity Interests, not permit the Company or and the Business, and Seller cause the Company not Subsidiaries to:
(i) amend its articles make any material change in their business or their operations, except such changes as may be required to comply with any applicable Requirements of incorporation or by-laws (or similar organizational documents)Law;
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor therefor, other than in the ordinary course of business, in excess of $50,000; provided that250,000;
(iii) terminate, accelerate, renew or amend, or exercise or waive any rights under, any Material Contract or enter into any lease, contract, license or other agreement that would have been required to be listed as a Material Contract if it had been in effect on the date of this Agreement;
(iv) enter into any contract for the purchase of real property;
(v) cancel any debts owed to or claims held by them (including the settlement of any claims or litigation) other than in the ordinary course of business consistent or in accordance with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofSection 7.5;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including other than any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Companytheir assets, other than, than with respect to investment assets in the case ordinary course of this clause (B), business and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), ) other than in the ordinary course of businessbusiness and other than any indebtedness that is subject to Section 7.5;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xiviii) except as expressly contemplated by pursuant to Section 7.97.6, declare, pay, make, or agree to make, or otherwise effectuate any distribution dividends or distributions, redemptions, equity repurchases, or other similar transactions involving its equity securities, or make any other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiix) other than as required by Requirements of Law or under any Benefit Plan, (A) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make provided under any material increase in the compensation of the employees of the CompanyCompany Benefit Plan, other than changes made (1) any change generally applicable to Seller employees or (2) in accordance with normal compensation practices and the ordinary course of business consistent with past compensation practices; (B) make any change in the compensation of any Company Employee, other than (1) routine increases in base compensation in the ordinary course of business consistent with past compensation practices or (2) any change generally applicable to Seller employees; (C) make any loan to, or enter into any other transaction with, any present or former director, officer, employee, Affiliate, individual consultant or independent contractor of the Company or any of the Subsidiaries, other than routine travel and other expense advances consistent with past compensation practices; (D) establish, adopt, enter into, amend or terminate any Company Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, other than (1) routine administrative amendments that do not materially increase the costs of maintaining such arrangements or (2) any change generally applicable to Seller employees; (E) forgive or discharge in whole or in part any outstanding loans or advances to any present or former director, officer, employee, individual consultant or independent contractor of the Company or any of the Subsidiaries; (F) terminate without “cause” any Company Employee listed on Seller Schedule 5.20(a); (G) except for the hiring or engagement of non-officer employees or individual independent contractors in the ordinary course of business who have aggregate annual base compensation that is not in excess of $250,000, hire or engage any employee or individual independent contractor of the Company or any of the Subsidiaries; and (H) transfer the employment of any person who is a Company Employee to the Seller or any of its Affiliates (other than the Company and the Subsidiaries) or accept the transfer of any employee of the Seller or any of its Affiliates (other than the Company and the Subsidiaries) who is not a Company Employee;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xvx) make any material change in the accounting policies applied in the preparation of the financial statements contained Financial Statements, make or change any material Tax election, file any amended income Tax Return or other material amended Tax Return, enter into any closing agreement, settle any income or other material Tax claim or assessment, surrender any right to claim a refund of any income or other material Taxes or consent to any extension or waiver of the limitation period applicable to any income or other material Tax claim or assessment, in Schedule 5.4each case, as it relates solely to the Company or any Subsidiary and unless such change is required by GAAPGAAP or applicable Requirements of Law;
(xi) settle, compromise or waive any material right in respect of any material litigation;
(xii) sell, assign or exclusively license any material Company Intellectual Property or otherwise dispose of any material Intellectual Property, other than in the ordinary course of business consistent with past practice or abandon any Registered IP;
(xiii) accelerate the collection of accounts receivable, delay the purchase of supplies, delay normal capital expenditures, repairs or maintenance, or delay payment of accounts payable or accrued expenses;
(xiv) make any change in their Constituent Documents or issue, sell, pledge, encumber, dispose or deliver any capital stock (or securities exchangeable, convertible or exercisable for capital stock) or other ownership interests of the Company or the Subsidiaries;
(xv) withdraw any Seed Capital from a Sponsored Fund if such withdrawal would be reasonably likely to reduce the Seed Capital Amount to less than $10,000,000 (but this restriction shall not apply to any tax distributions or other incidental distributions generally applicable to investors in the relevant Sponsored Fund(s));
(xvi) originatetransfer any Seed Capital from its current investment as of the date of this Agreement to an investment that may not be redeemed on at least a quarterly basis;
(xvii) take any action that (A) would prevent any Sponsored Fund from qualifying as a “regulated investment company” under Section 851 of the Code, acquire(B) would be materially inconsistent with the prospectus and other offering, holdadvertising and marketing materials, sellas amended or supplemented, transferof any Sponsored Fund then engaging in a public offering of its shares, securitize or hedge loans secured (C) would result in the merger, consolidation or other reorganization of any Sponsored Fund;
(xviii) agree to reduce, waive, cap or subject to rebate the compensation paid by real estate; provided thatany Sponsored Fund, Advisor, GFWM Direct Client, A Fund, A Managed Account Client, Wrap Fee Client or any other Person to which the Company or one of its Subsidiaries provides Investment Services other than in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xviixix) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller enter into a legally binding commitment with respect to all of its Controlled Affiliatesthe foregoing.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating their present condition and repair (fair wear and tear excepted) and shall use its all reasonable best efforts consistent with good business practice to maintain the business organization of the Company Seller intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokers, lenders distributors and others having business relations with the CompanyBusiness. In connection therewith, Seller shall not, and shall not permit without the Company toprior written approval of Buyer (i) transfer or cause to be transferred from Seller any employee, with respect or (ii) offer employment after the Closing Date to any employee of the Company, (i) transfer such employee to Seller or an Affiliate other than the Remaining Employees without the prior written consent of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or Buyer (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with Seller, other than for cause in the Company or not to continue employment with the Company after the Closingordinary course of business.
(b) In addition, and without limiting Section 7.4(a), except as Unless expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of businessSeller;
(ivii) make any capital expenditure or enter into any contract for the sale of any Owned Real Property or commitment therefor exercise any option to purchase real property listed in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanySchedule 5.10;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(viiii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the CompanyPurchased Assets, other than, in the case than inventory and personal property sold or otherwise disposed of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than for fair value in the ordinary course of the Business consistent with past practicepractice and other than Permitted Encumbrances;
(viiiiv) createallow the levels of raw materials, incur supplies, work-in-process or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than materials included in the ordinary course inventory of businessSeller to vary in any material respect from the levels customarily maintained in the Business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xiiv) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare welfare, provident fund or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or Seller other similar payments than changes made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;in accordance with normal practices and consistent with past practices in consultation with Buyer; or
(xiiivi) make any material increase in change the compensation of the employees of the CompanySeller, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lsi Corp)
Operations Prior to the Closing Date. Seller covenants and agrees that (a) Except except (i) as set forth in Schedule 7.4 or as expressly contemplated by this Agreement or except Agreement, (ii) as disclosed in Section 7.2 of the Disclosure Schedules, (iii) with the prior written approval consent of Buyer, Buyer (which Buyer agrees consent shall not be unreasonably withheld withheld, conditioned or delayed), or (iv) as otherwise required by Legal Requirements and (b) to the extent not inconsistent with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, any orders entered by the Bankruptcy Court in the Bankruptcy Case, or as permitted under the DIP Agreements or DIP Order (including the “Budget” (as defined in the DIP Order), subject to the “Permitted Variances” (as defined in the DIP Agreements)), after the Execution Date and prior to the Closing Date, Seller shall use its commercially reasonable efforts to operate to:
(a) maintain, preserve and shall use its reasonable efforts to cause protect the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company Acquired Assets in good operating condition and repair repair, except for ordinary wear and shall use its reasonable best efforts consistent tear;
(b) keep in full force and effect all material rights relating to the Business and the Acquired Assets;
(c) continue in full force and effect the insurance coverage for the Acquired Assets;
(d) comply with good business practice all Legal Requirements and contractual obligations applicable to maintain the business organization Acquired Assets and the operations of the Company intact Business and preserve the goodwill Facility, including promptly delivering to Buyer copies of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, any notices it receives from any Governmental Authority with respect to any employee violations of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, applicable Legal Requirements with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents)Acquired Assets;
(iie) issue, grant, sell preserve and maintain all Governmental Authorizations related to the Business or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the CompanyAcquired Assets;
(iiif) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate subject to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereofterms of this Agreement, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of upon request from time to time, execute and deliver all documents and do all other acts that may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofAgreement;
(vig) sell, lease (as lessor), transfer promptly notify Buyer after learning of any material damage to or otherwise dispose destruction of (including any transfers from the Company to Seller all or any material portion of its Affiliates)the Owned Real Property or Acquired Assets, reasonable wear and tear excepted; and
(h) not sell or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, lease any of (A) the Equity Interests Acquired Assets, even if such sale or (B) the assets or properties of the Company, other than, lease is in the case Ordinary Course of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBusiness.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. (a) Except Seller shall, and shall cause the Company Group and, to the extent related to the Business, each other Subsidiary of Seller to, (x) operate and carry on the Business in the ordinary course of business consistent with past practice and (y) use commercially reasonable efforts to maintain and preserve intact the current organization, Governmental Permits, business and franchise of the Company Group and to the extent related to a Business Carve-out Asset or Business Carve-out Liability, Seller and its other Subsidiaries, and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Business.
(b) Notwithstanding Section 7.4(a), except as set forth in on Schedule 7.4 7.4, as expressly permitted or as contemplated required by this Agreement or except with the express written approval of BuyerBuyer (which, which in the case of Sections 7.4(b) (ix)(A), (C) or (D), (xii) or (xv) (solely with respect to Business Agreements or Occupancy Leases), Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed), Seller shall use its reasonable efforts to operate and shall use its reasonable efforts the extent related to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewithBusiness, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, its Subsidiaries (iincluding any Member) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend except as required by any changes in Requirements of Law arising after the date of this Agreement, make any material change in the Business or its articles of incorporation or by-laws (or similar organizational documents)operations;
(ii) issueacquire (by merger, grantconsolidation, sell or encumber any shares acquisition of its capital stock or other securitiesassets or otherwise) any corporation, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription partnership or other right of any kind, fixed business organization or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Companydivision;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in 100,000 that would be payable after the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyClosing;
(viv) (A) enter into any Contract which would have been a Company Agreement if in effect on for the date hereofpurchase or lease of real property, (B) purchase or lease any real property, (C) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement to sell any Individual Real Property or any interest therein, (D) sell, assign, transfer, dispose of, pledge or encumber (except for Permitted Encumbrances) any Individual Owned Property, or (CE) sell, assign, transfer, dispose of, pledge, encumber (except for Permitted Encumbrances) or terminate any Real Property Lease;
(v) modify, amendrelease or waive any material provision of, terminate provide any material consent under, or grant exercise any consent or waiver under option to extend, any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofReal Property Lease;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of businessbusiness consistent with past practice under the Credit Agreement;
(ixvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalentscash) to Seller or any of its Affiliates;
(xiiviii) institute sell, assign, transfer, pledge, encumber, license or otherwise dispose of any material increase assets (whether real, personal or mixed and including any Intellectual Property), other than in the ordinary course of business consistent with past practice;
(ix) except as required by any profit-sharingRequirements of Law arising after the date of this Agreement or any Benefit Plan or contractual obligations in effect prior to the date hereof (A) grant any increase, bonusor announce any increase, incentivein the (1) wages, deferred salaries or compensation, insurance, pension, retirement, medical, hospital, disability, welfare (2) bonuses or other employee benefit plan with incentives (provided that bonuses or incentives in respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or periods completed prior to the Closing Date as that are accrued and reflected in the Financial Statements may be paid in the ordinary course of business consistent with past practice) or (3) pension or other benefits, in each case payable to a Business Employee or consultant of the Business, other than increases in salaries or wages of Business Employees who are non-executive employees in the ordinary course of business consistent with past practice, (B) establish, adopt, enter into, terminate or amend any material Benefit Plan or any pension plan (or any Contract or other arrangement that would be a material Benefit Plan or a pension plan if established, adopted or entered into prior to the date of this Agreement), except for amendments to Seller Plans in the ordinary course of business consistent with past practice that would not reasonably be expected to result in additional Liabilities of Buyer, the Company Group and their Affiliates pursuant to this Agreement or otherwise on or following the transactions Closing; (C) enter into, amend, terminate or modify any collective bargaining agreement or (D) except as contemplated herebyon Schedule 7.4, hire any employee, other than a non-executive employee having total annual compensation not in excess of $75,000 hired in the ordinary course of business consistent with past practice;
(xiiix) (A) make any material increase loan to any of its directors, officers or employees other than advances on expenses made in the compensation ordinary course of the employees of the Company, other than changes made business consistent with past practice in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), Business policy or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement other material transaction with Seller, nor any officer, director or similar agreement related to Taxes, otherwise settle Affiliate of Seller or the Company Group nor any dispute relating to Taxes, or request immediate family member of any ruling or similar guidance with respect to Taxesof the foregoing;
(xvxi) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4Financial Statements, unless such change is required by GAAPGAAP after the date of this Agreement or as required by applicable Requirements of Law, or fail to prepare Tax Returns on a basis consistent with past practices, except as required by applicable Requirements of Law and except as would not adversely affect the Tax liability of any Member after the Closing Date;
(xii) make a change in practices and procedures with respect to collection of accounts receivable, prepayment of expenses, or payment of trade accounts payable or collect any Dormancy Fees;
(xiii) settle any Action, except to the extent such settlement (A) does not obligate the Company Group to pay money following the Closing and (B) does not obligate the Company Group to take or refrain from taking any action following the Closing;
(xiv) except as required by applicable Requirements of Law and except as would not materially affect the Tax liability of any Member after the Closing Date, (A) make or change any material Tax election or Tax accounting method with respect to Taxes payable by any Member, (B) settle any Tax claim or assessment with respect to Taxes payable by any Member, (C) surrender any right to claim a refund of Taxes for post-Closing periods to which a Member may be entitled, (D) consent in writing to any extension or any waiver of the limitation period applicable to any material Tax claim or assessment with respect to Taxes payable by any Member, or (E) amend any Tax Return, in each case if such action would reasonably be expected to be, individually or in the aggregate, material to the Company Group;
(xv) enter into, materially modify or terminate, or waive any material right or remedy under, any Contract that is or would constitute a Business Agreement, Real Property Lease or Occupancy Lease; or
(xvi) originateexcept as required by applicable Requirements of Law, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, make any change in the ordinary course charter or bylaws or comparable organization document of business consistent with past practiceany Member of or issue any equity (or securities exchangeable, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company convertible or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliatesexercisable for equity).
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, If the exercise period for any automatic renewal option under any Real Property Lease is scheduled to terminate or suitable replacements therefor, in full force expire during the period between the date hereof and effect through the Closing Date, Seller shall (acting in consultation with Buyer and subject to Section 7.4(b)(v)), or shall cause its applicable Subsidiary to, exercise any automatic renewal provision under each such Real Property Lease.
(d) Notwithstanding anything contained herein to the contrary, Seller shall be entitled to transfer any cash of the Company Group to Seller, via dividend or otherwise, at any time and from time to time prior to Closing.
(e) Notwithstanding anything contained herein to the contrary, the restrictions set forth in this Section 7.4 shall not apply to the Excluded Assets and Seller shall be permitted to sell, transfer or otherwise dispose of the Excluded Assets at its sole discretion.
(f) Seller shall, and shall cause the Company Group to make capital expenditures in an amount not less than $1,200,000 during the period between June 28, 2014 and September 27, 2014; provided, however, that such amount shall be pro-rated in the event the Closing occurs prior to September 27, 2014. For the avoidance of doubt, the costs and expenses of any repairs or actions taken by Seller pursuant to Section 7.11 and, with respect to actions and repairs to be taken by Seller after Closing pursuant to Section 7.11, the parties good faith estimate of costs and expenses that will be required to complete such actions or repairs, shall be counted towards such obligation to make capital expenditures in an amount not less than $1,200,000 (it being understood and agreed that to the extent Seller spends less than such estimates in the aggregate, it shall promptly (and in any event within fifteen (15) business days) pay over to Buyer the amount by which the aggregate estimate exceeded the amount actually spent by Seller).
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with Between the written approval of BuyerEffective Date and the Closing, which Buyer agrees shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to Sellers will cause the Company Business to carry on the Business only be operated in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall notbusiness, and shall not take any action inconsistent with the transactions contemplated hereby and will not permit any material transaction outside the Company to, with ordinary course of business in respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and Business without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld) or delayed)unless so ordered by the Bankruptcy Court after notice to Buyer. Without limiting the generality of the foregoing, Seller Sellers shall not, without the express written approval of Buyer, which shall not be unreasonably withheld, or authorization by order of the Bankruptcy Court:
(a) Except as set forth on Schedule 2.1(e), fail to maintain or renew all copyright, trademark and patent applications or fail to maintain any registered copyrights, trademarks or patents;
(b) fail to maintain in good working order any Equipment, unless it has a de minimis impact upon the Business;
(c) fail to maintain all insurance covering loss or destruction of the Purchased Assets or conduct of the Business currently in effect;
(d) fail to maintain all material relationships with respect lessors, licensors, suppliers, customers, and employees of the Business;
(e) fail to preserve the Equity Interests, the Company or strict confidence of all trade secrets related to the Business, and Seller cause subject to the Company not to:
(i) amend its articles Seller’s ability to disclose information to other prospective bidders in accordance with the terms of incorporation or bythe standard non-laws (or similar organizational documents)disclosure agreement furnished to prospective bidders;
(iif) issueenter into any contract, grantagreement, sell undertaking or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in commitment affecting the Business or the operations outside of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
(v) (A) enter into any Contract which would have been a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vig) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company a Seller to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted EncumbrancesPurchased Assets;
(viih) cancel unless to Sellers’ benefit, amend, modify, extend, renew or terminate any debts owed to Contract or claims held by the Company (including the settlement of Real Property Lease or terminate, waive or amend any claims or litigation) other than in the ordinary course right under any of the Business consistent Contracts or Real Property Leases; or
(i) enter into any business or arrangement or otherwise take any action that would reasonably be expected to have a material adverse impact on the ability of the Buyer to obtain any material consents of governmental entities necessary in connection with past practicethe Business;
(viiij) create, incur intentionally fail to notify Buyer in writing of the commencement of any material litigation against any Seller or assume, the Business;
(k) intentionally fail to notify Buyer in writing of the proposed entry into any Contract or agree Real Estate Lease and the intention to create, incur reject any Contract or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations Real Estate Lease (as defined in Statement of Financial Accounting Standards No. 13), other than Seller’s Lease at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in San Francisco); or
(l) fail to comply with all Requirements of Law applicable to the Purchased Assets, and promptly after receipt thereof, give Sellers copies of any notice received from any Governmental Body or other Person alleging any violation of or liability under any such Requirements of Law. To the extent that there is any ambiguity as to whether a contract, agreement, undertaking or commitment affects the Business or the Purchased Assets or is outside of the ordinary course of business;
(ix) accelerate , Sellers shall consult with Buyer in good faith prior to entering into such contract, agreement, undertaking or delay collection commitment. For purposes of any notes or accounts receivable clarity, nothing in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by this Section 7.9, make, or agree 7.3 shall be construed to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect way limit Sellers’ ability to employees of auction the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior Purchased Assets to the Closing Date as a result of this Agreement or highest bidder at the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesAuction.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Access Global Holdings Inc)
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except with the written approval of Buyer, which Buyer agrees Nexell ------------------------------------ California and Nexell shall not be unreasonably withheld or delayed, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Toolbox Products Distribution Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller Nexell California and Nexell shall cause the Company to keep and maintain the material assets of the Company Purchased Assets in good operating condition and repair and shall use its commercially reasonable best efforts consistent with good business practice to maintain the business organization of the Company Toolbox Products Distribution Business intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, brokerscustomers, lenders distributors and others having business relations with the CompanyToolbox Products Distribution Business. In connection therewith, Seller shall not, Nexell California and Nexell shall not permit the Company to, with respect to any employee of the Company, (i) transfer such or cause to be transferred from the Toolbox Products Distribution Business any employee to Seller or an Affiliate of Selleragent thereof, except as contemplated by this Agreement and the transactions contemplated hereby, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date to any such employee or agent or (iii) otherwise attempt to persuade any such employee person to terminate his or her relationship with the Company Nexell California (or not to continue employment with the Company after the Closingits Affiliates).
(b) In addition, and without limiting Section 7.4(a), except Except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld ▇▇▇▇▇▇ or delayedas set forth on Schedule 8.4(b), Seller --------------- Nexell California (and its Affiliates) shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes expenditures in excess of $10,000 individually or $200,000 in the equity capital structure aggregate to suppliers of the Company;
(iii) make any change in the Toolbox Products Distribution Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Companytherefor;
(v) (Aii) enter into any Contract contract, agreement, undertaking or commitment which would have been a Company Agreement required to be set forth in Schedule -------- 2.2(b) or as described in Section 5.9(d) if in effect on the date hereof, (B) ------ or enter into any Contract contract which would require cannot be assigned to ▇▇▇▇▇▇ or a permitted assignee of ▇▇▇▇▇▇ without the consent of a third party in connection with the consummation of other part(y)(ies) thereto, or enter into any license agreement relating to the transactions contemplated by this Agreement Toolbox Products Distribution Business or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereofLicensed Intellectual Property;
(viiii) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company Nexell California to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests Purchased Assets, other than inventory and minor amounts of personal property sold or (B) otherwise disposed of for fair value in the assets or properties ordinary course of the Company, Toolbox Products Distribution Business consistent with past practice and other than, in the case of this clause (B), than Permitted Encumbrances;
(viiiv) cancel any debts owed to or claims held by the Company Nexell California (or its Affiliates) (including the settlement of any claims or litigation) other than in the ordinary course of the Toolbox Products Distribution Business consistent with past practice;
(v) accelerate or delay collection of any notes or accounts receivable generated by the Toolbox Products Distribution Business in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Toolbox Products Distribution Business consistent with past practice or collect or agree to collect any such receivable for less than the face amount thereof;
(vi) delay or accelerate payment of any account payable or other liability of the Toolbox Products Distribution Business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Toolbox Products Distribution Business consistent with past practice;
(vii) allow the levels of raw materials, supplies, work-in- process or other materials included in the inventory of the Toolbox Products Distribution Business to decline below the level necessary for the continued operation of the Toolbox Products Distribution Business;
(viii) make, or agree to make, any payment of cash or distribution of assets to Nexell California or any of its Affiliates (other than cash realized upon collection of receivables generated in the ordinary course of the Toolbox Products Distribution Business);
(ix) create, incur or assume, or agree to create, incur or assume, any Indebtedness indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;Toolbox Products Distribution Business; or
(xiiixi) make any material increase in change the compensation of the Key Employees or the employees of the CompanyNexell International, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company Prior to the Closing Date Nexell California and its Affiliates shall keep all insurance policies set forth afford to the ▇▇▇▇▇▇ Representatives reasonable access to its facilities, and will cause one or more of its designated representatives to consult as requested by ▇▇▇▇▇▇ on Schedule 5.22a regular basis with the ▇▇▇▇▇▇ Representatives and to discuss the general status of ongoing operations of the Toolbox Products Distribution Business. Without limiting the generality of the foregoing, each of Nexell California and Nexell shall use commercially reasonable efforts to ensure that the ▇▇▇▇▇▇ Representatives are given reasonable advance notice of any action or commitment which could be expected to involve a commitment, expenditure, or suitable replacements thereforother obligation (other than payments to employees in accordance with normal compensation practices and consistent with past compensation practices) relating to the Toolbox Products Distribution Business in an amount exceeding $10,000. Nexell California and Nexell shall promptly provide the ▇▇▇▇▇▇ Representatives with copies of any materials and correspondence relating to any of the notifications, communications, complaints or occurrences listed in full force and effect through the Closing DateSection 8.5.
Appears in 1 contract
Operations Prior to the Closing Date. Except (a) Except as otherwise expressly contemplated by this Agreement, (b) as set forth on Schedule 7.02, or (c) as otherwise consented to in Schedule 7.4 writing by Buyer in its sole discretion, from the date hereof until the Closing Date or as contemplated by the earlier termination of this Agreement or except in accordance with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, its terms:
(i) Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall will use its reasonable best efforts consistent with good business practice to maintain (A) operate the business organization of the Company intact Facilities and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment other Assets operated by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, Subsidiaries in the ordinary course of business consistent with past practicein all material respects and to maintain, the Company may originate loans secured by 1-to-4 family residential real estate or cause to be maintained, all Assets in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
good working order and condition (vordinary wear and tear excepted) (Aincluding, without limitation, conducting all inspections and acts of service and repair with at least the level of care and frequency required to comply with (x) enter into any Contract which would have been a Company Agreement if in effect on manufacturer recommendations or guidelines or (y) customary industry practice for similar assets as the date hereofapplicable Asset), (B) enter into any Contract which would require the consent of a third party maintain books, accounts and records relating to such Assets in connection accordance with the consummation of the transactions contemplated by this Agreement or past custom and practice in all material respects, (C) modifypreserve intact the business organizations of Seller and its Subsidiaries, amend(D) preserve its current relationships with Third Parties, terminate including suppliers, vendors, customers, clients, contractors and others, related to the Assets or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on having business dealings related to the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of Acquired Business (including any transfers from with respect to sales of products and volumes of production) and keep available the services of Company to Seller or any of its Affiliates)Employees, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties consultants and agents of the Company, other than, Selling Entities in connections with the case services such persons provided in respect of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including Assets and the settlement of any claims or litigation) other than Acquired Business in the ordinary course of business, and (E) comply with all Applicable Laws and Orders applicable to the Assets and Acquired Business consistent with past practiceand to give prompt notice to Buyer of any notice of any material damage or any material Casualty Loss and any notice received or made by Seller of any claim asserting any material tort or violation of Applicable Law or any new Proceeding that (in each case) relates to such Assets or the Acquired Business;
(viiiii) createwithout limiting the foregoing, incur Seller will not, and will cause its Subsidiaries not to:
(A) liquidate, dissolve, recapitalize or assumeotherwise wind up its operations related to the Assets;
(B) terminate, cancel, materially amend or modify, grant a waiver or consent with respect to or extend any Material Contract, in each case other than any immaterial changes made in the ordinary course of business, or agree enter in to createany Contract that could be a Material Contract;
(C) violate, incur breach or assumedefault under, or take or fail to take any action that (with or without notice or lapse of time or both) could reasonably constitute a violation, breach of, or default under, any Indebtedness material term or enter intoprovision of any Acquired Contract or any Acquired Permit, as lesseeincluding, without limitation, any capitalized lease payment obligations thereunder;
(as defined D) sell, lease, transfer, abandon, permit to lapse, fail to maintain, exclusively license, assign or otherwise dispose of any material Assets, in Statement of Financial Accounting Standards No. 13), each case other than in the ordinary course of business;
(ixE) accelerate disclose any material trade secrets or delay collection know-how related to, associated with or arising from the Acquired Business or any Assets to any Person that is not subject to any confidentiality or non-disclosure agreement;
(F) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any notes material assets, securities, properties, interests or accounts receivable businesses for the conduct of the Acquired Business, in advance each case other than pursuant to existing Contracts described on Schedule 7.02(ii)(F);
(G) other than as permitted by Section 7.02(ii)(F), make any material loans, advances or capital contributions to, or investments in, any other Person (other than any Subsidiary of or beyond their regular due dates or Seller) with respect to the dates involving more Business, other than $25,000 when the same would have been collected advances to employees in the ordinary course of the Business consistent with past practicebusiness;
(xH) delay subject any of the Assets to any Encumbrances, except for Permitted Encumbrances;
(I) enter into any agreement or accelerate payment arrangement that materially limits or otherwise restricts in any material respect the conduct of the Acquired Business or the use or saleability of the Assets or that could reasonably be expected to, after the Closing Date, limit or restrict in any material respect the Acquired Business or Buyer’s use of the Assets;
(J) change its accounting methods, policies or practices, in each case as they relate to the Assets;
(K) commence, settle or propose to settle any Proceedings that could reasonably be expected to materially diminish the value of the Assets or impair title thereto; or
(L) other than as required by Applicable Law or by the terms of any account payable Seller Benefit Plan or Collective Bargaining Agreement as in effect on the date hereof, (1) grant any loan to any Company Employee or pay any bonus to any exempt Company Employee, (2) hire or promote or terminate the employment (other than for cause or due to elimination of position) of any Company Employee with annual salary in excess of $100,000, (3) grant or increase any severance, change in control, retention, termination or similar compensation or benefits to (or amend any existing severance, change in control, retention, termination or similar compensation, benefits or arrangement with) any exempt Company Employee, (4) establish, adopt, amend, or terminate any Collective Bargaining Agreement (other than as specifically contemplated under this Agreement) or Seller Benefit Plan, (5) increase the compensation, bonus or other liability benefits payable to any Company Employee, (6) pay to any exempt Company Employee any benefit or amount not required under any Seller Benefit Plan as in effect on the date of this Agreement, or (7) take any action to accelerate the vesting of, or payment of, any compensation or benefit under any Seller Benefit Plan;
(M) except as required by Applicable Law, (1) make, revoke or change any material Tax election or method of accounting with respect to Taxes, (2) file any amended Tax Return, (3) enter into any closing agreement, (y) settle or compromise any Tax claim or assessment, or (4) consent to any extension or waiver of the Company beyond limitation period applicable to any claim or assessment with respect to Taxes; in advance of its due date each case to the extent such action could adversely affect the Assets or the date involving more Business in a Post-Closing Tax Period;
(N) fail to keep in force, cancel or materially modify any Insurance Policy, except where replaced with a substantially similar policy;
(O) abandon or permit to lapse any Registered Intellectual Property;
(P) enter into any Contract under which any Selling Entity grants or agrees to grant to any Third Party any assignment, license, release, immunity or other right with respect to any Acquired Intellectual Property or Licensed Intellectual Property (other than $25,000 when non-exclusive licenses of such liability would have been paid Intellectual Property granted to customers in the ordinary course of the Business consistent with past practicebusiness);
(xiQ) except as expressly contemplated by Section 7.9, make, or agree fail to make, any distribution or other disposition of assets (other than cash maintain inventory to and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to including the Closing Date as of a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices quality usable and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, salable in the ordinary course of business consistent with past practiceand in sufficient quantities to operate the Acquired Business as it is and has been historically conducted in all material respects;
(R) take any action or fail to take any action that could reasonably be expected to have, individually or in the Company may originate loans secured by 1-to-4 family residential real estate in aggregate, a Material Adverse Effect;
(S) take any action that could cause any asset that is an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf Asset as of the Company date hereof to no longer be an Asset as of Closing, including transferring any asset that is used or transfer any loans secured by real estate held for use in connection with a Facility or the operations of a Facility to an Excluded Facility, except for the Companysale of inventory to a Third Party in the ordinary course of business; or
(xviiT) make agree or commit to do any material change of the foregoing; and
(iii) The Seller will deliver to the Buyer any and all (A) DIP Budgets (including DIP Budgets as updated, modified, or supplemented in internal control over financial reportingaccordance with Section 5.12 of the DIP Credit Agreement) concurrently with delivery to the DIP Agent and (B) DIP Variance Reports concurrently with delivery to the DIP Agent pursuant to Section 5.01(c) of the DIP Credit Agreement. For purposes of any consent by Buyer under Section 7.02(ii), other than any change required (x) such consent may be requested by GAAP Seller and given by Buyer by email, (y) such consent request may be sent by Seller by email to A▇▇▇ ▇▇▇▇▇▇ at a▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ (or any change made other individual designated by Buyer to Seller with respect for this purpose), each of whom is authorized to all give consent hereunder on behalf of its Controlled AffiliatesBuyer, and (z) Buyer will use commercially reasonable efforts to give or deny consent within three (3) Business Days of the request.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except (x) as set forth in Schedule 7.4 Section 6.04(a) of the Disclosure Schedules, (y) as required by Law or as contemplated by this Agreement or except (z) with the express written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayedprior to the Closing Date, Seller shall use its reasonable efforts shall, solely with respect to operate each Acushnet Company, and shall use its reasonable efforts to cause the Company Acushnet Companies to carry on the Business only (i) conduct their respective businesses and operations in the ordinary course of business in all material respects, and substantially as presently operated. Consistent with the foregoing(ii) use their commercially reasonable efforts, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good past business practice practice, to maintain the business organization of the Company intact and preserve the goodwill of the suppliers, distributors, contractors, licensors, employees, brokerscustomers, lenders Governmental Authorities and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the ClosingAcushnet Companies.
(b) In additionExcept (x) as set forth in Section 6.04(b) of the Disclosure Schedules, and without limiting Section 7.4(a)(y) as required by Law, except as expressly contemplated by this Agreement or except (z) with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed)Buyer, prior to the Closing Date, Seller shall will not, solely with respect to the Equity Interests, the Company or the Businesseach Acushnet Company, and Seller will cause each of the Company not toAcushnet Companies to not:
(i) amend its articles the Organizational Documents of incorporation or by-laws (or similar organizational documents)any Acushnet Company;
(ii) issuesplit, grantcombine, sell redeem, repurchase or encumber reclassify any shares of its capital stock or other securities, or issue, grant, sell or encumber Equity Interests (including the Shares) in any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Acushnet Company;
(iii) issue, sell or otherwise dispose of any Equity Interests (including the Shares) in any Acushnet Company, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any such Equity Interests (including the Shares);
(iv) materially change any method of accounting or accounting practice of the Acushnet Companies, except as required by GAAP or as disclosed in the notes to the Audited Financial Statements or as Seller determines necessary or appropriate as part of its over-all financial reporting in response to comments of the Securities and Exchange Commission staff or otherwise;
(v) incur, assume or guarantee any Indebtedness in an aggregate amount exceeding $5 million, except unsecured current obligations and Liabilities incurred in the ordinary course of business, or incur, or suffer to exist, any Lien on the assets of the Acushnet Companies other than Permitted Liens;
(vi) (A) sell, lease, license or otherwise dispose of any material amount of assets or property (other than inventory), except pursuant to existing Contracts entered into in the ordinary course of business, or (B) sell, lease, license or otherwise dispose of any Equity Interests;
(vii) make any change in the Business compensation of any Company Employee other than (A) as required by any existing Company Benefit Plan or the operations of the Company outside in the ordinary course of businessbusiness or (B) changes planned as of the date of this Agreement, all of which are set forth in Section 6.04(b)(vii) to the Disclosure Schedules
(viii) (A) enter into any Contract with any Company Employee or (B) adopt, amend or modify any such Contract or Company Benefit Plan, the effect of which would materially increase the obligations of any Acushnet Company under such Contract or Company Benefit Plan;
(ivix) acquire by merger, consolidation or amalgamation with, or by purchase of the assets or Equity Interests of, or by any other manner, any business or any Person or any division, assets or Equity Interests thereof;
(x) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(xi) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, income Tax election (except for elections made in the ordinary course of business consistent with past practice), change any annual income Tax accounting period, amend any Tax return, settle or compromise any Tax liability, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a Tax refund or fail to make the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not payments or consent to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf extension or waiver of the Company limitations period applicable to any Tax claim or transfer assessment, in each case, if such item is material and related to any loans secured by real estate to of the CompanyAcushnet Companies;
(vxii) (A) enter into any Contract which would have been fail to maintain insurance coverage in a Company Agreement if in effect on the date hereof, (B) enter into any Contract which would require the consent of a third party in connection manner that is consistent with the consummation insurance coverage maintained in respect of the transactions contemplated by this Agreement business of Seller and its Affiliates (other than the Acushnet Companies);
(xiii) settle, release or forgive any material Action, claim or litigation or waive any material right with respect thereto;
(Cxiv) modify, amend, terminate or grant waive any consent or waiver material right under any Company Agreement or any Material Contract that would have been a Company Agreement if it were in effect on the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter intointo any new Material Contract, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than except in the ordinary course of business;
(ixxv) accelerate or delay collection materially amend any expenditure budget of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected Acushnet Company, except in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAPbusiness;
(xvi) originatealter, acquireamend or otherwise change its collection policies with regard to accounts receivable, holdits payment practices with respect to its accounts payable, sellits production practices with respect to the level, transfer, securitize mix and quality of its inventories or hedge loans secured by real estate; provided that, in its historical practices with respect to the ordinary course payment of business consistent with past practice, expenses or Liabilities that are not Current Liabilities for the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf purposes of the Company or transfer any loans secured by real estate to the CompanyWorking Capital Adjustment; or
(xvii) make any material change in internal control over financial reporting, other than agreement to do any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22the foregoing, or suitable replacements therefor, take any action or omission that would result in full force and effect through any of the Closing Dateforegoing.
Appears in 1 contract
Operations Prior to the Closing Date. (a) Except as set forth in Schedule 7.4 or as contemplated by this Agreement or except Prior to the Closing, Parent shall, and shall cause the Acquired Company and, with respect to the written approval of BuyerBusiness, which Buyer agrees shall not be unreasonably withheld or delayedthe Asset Sellers to, Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course consistent with past practice and substantially as presently operated. Consistent with operated immediately prior to the foregoing, Seller shall cause date of this Agreement and use commercially reasonable efforts to:
(i) preserve the Company to business relationships of the Business and keep available the services of its key employees and maintain the material assets of the Company in good operating condition its relations and repair and shall use goodwill with its reasonable best efforts consistent with good business practice to maintain the business organization of the Company intact and preserve the goodwill of the employeeskey suppliers, brokerscustomers, lenders employees and others having business relations relationships with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, Business;
(ii) offer such employee employment by Seller maintain in effect all Intellectual Property included in the Acquired Assets and applications and registrations for Intellectual Property included in the Acquired Assets (other than abandonments, expirations and cancellations occurring in the ordinary course of business consistent with past practice that are not material, individually or an Affiliate of Seller after in the Closing Date or aggregate, to the Business); and
(iii) otherwise attempt to persuade any such employee to terminate his or her relationship with maintain all material structures, equipment and other tangible personal property of the Company or not to continue employment with Business, in their present repair, order and condition, except for depletion in the Company after the Closingordinary course of business and ordinary wear and tear.
(b) In addition, and without Without limiting the generality of Section 7.4(a), except as required by applicable Requirements of Law, as expressly contemplated by this Agreement or except Agreement, with the express prior written approval of Buyer (which Buyer agrees shall not be unreasonably withheld withheld, conditioned or delayed) or as set forth on Schedule 7.4(b), Seller Parent shall notcause the Acquired Company and, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of Acquired Assets, the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided thatAsset Sellers, other than in the ordinary course of business consistent with past practice, not to:
(i) purchase or otherwise acquire any assets (including real property) or make any capital expenditures, in each case that are material, individually or in the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount aggregate, to the Business (other than capital expenditures that do not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of 250,000 individually or $500,000 in the Company or transfer any loans secured by real estate to the Companyaggregate);
(vii) sell, lease, license, sublicense, abandon, encumber (Aother than Permitted Encumbrances) or otherwise transfer or dispose of, or grant any purchase options or rights with respect to, any assets, properties (including real property) or interests of the Business or any interest therein, or enter into any Contract which would have been a Company Agreement if agreement to do any of the foregoing (other than the sale of inventory in effect on the ordinary course of business consistent with past practice and other than the disposition of obsolete assets or other assets not used in the Business during the twelve (12) months preceding the date hereof);
(iii) alter (except for maintenance in the ordinary course of business), demolish or remove any improvements on the Real Property or erect improvements on the Real Property or any portion thereof;
(Biv) enter into make any Contract which would require the consent of a loan to any third party in connection with the consummation of Business or create or allow the transactions contemplated by this Agreement Business to create, incur, assume or guarantee any indebtedness for borrowed money (Cother than as will be discharged on or prior to the Closing Date);
(v) modify, amend, terminate or grant transfer any consent or waiver under any Company Agreement assets to Parent or any Contract that would have been a Company Agreement if it were of its Affiliates (other than the Acquired Company), other than Cash and Cash Equivalents and other than in effect on connection with settling any intercompany accounts, balances or other transactions prior to the date hereofClosing;
(vi) sell, lease (as lessor), transfer materially increase the benefits provided under any Plan to any current or otherwise dispose of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13)former Service Provider, other than in the ordinary course of businessbusiness consistent with past practice or as required by the terms of any Plan or Contract or pursuant to Requirements of Law;
(ixvii) accelerate materially increase the base salary, wages, bonus opportunity or delay collection other compensation or benefits of any notes Business Employee who is an officer or accounts receivable in advance has an annual base salary of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9150,000, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable the terms of any Plan or Contract (in each case, in effect as of the date hereof) or pursuant to Requirements of Law, prepare whether or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, not in the ordinary course of business consistent with past practice;
(viii) establish, adopt, materially amend or terminate any Plan in a manner that impacts the compensation and/or benefits provided to Service Providers or any collective bargaining or similar agreement (including the CBA), except as required to comply with Requirements of Law;
(ix) grant any compensatory equity awards or accelerate the vesting or payment of any compensation or benefits to or for the benefit of any Service Provider, other than as required to comply with Requirements of Law, whether or not in the ordinary course of business consistent with past practice;
(x) hire, promote or terminate (other than for cause) any Service Provider who is an officer or has an annual base compensation of more than $75,000, or transfer the employment or engagement of any Service Provider from the Acquired Company may originate loans secured to any Affiliate thereof, or transfer the employment or engagement of any Person from Parent, Sellers or their Affiliates (other than any Acquired Company) to the Acquired Company;
(xi) acquire by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured merging or consolidating with, or by real estate on behalf purchasing a substantial portion of the Company capital stock or transfer assets of, directly or indirectly, any loans secured by real estate to the Company; orbusiness or any corporation, partnership, association or other business organization or division thereof;
(xviixii) accelerate, terminate, materially modify or amend any Material Contract, or enter into any Contract that would be a Material Contract if in existence as of the date hereof;
(xiii) make any material change in internal control over financial reportingthe accounting methods or policies of the Business (including in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other than any expenses, deferral of revenue and acceptance of customer deposits), unless such change is required by GAAP or applicable Requirements of Law;
(xiv) make, change or revoke any Tax election; adopt or change made by Seller any accounting method with respect to all Taxes with respect to the Business; file any amended Tax Return; enter into any closing agreement with respect to the Business; settle or compromise any Tax claim or assessment with respect to the Business; or consent to any extension or waiver of its Controlled Affiliates.the limitation period applicable to any claim or assessment with respect to Taxes of the Business;
(cxv) The Company shall keep all insurance policies set forth on Schedule 5.22issue, deliver or suitable replacements thereforsell any securities of the Acquired Company;
(xvi) amend the Organizational Documents of the Acquired Company;
(xvii) enter into a new line of business or abandon or discontinue any existing lines of business;
(xviii) adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file of a petition in full force bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar Requirements of Law;
(xix) waive or settle any claims or rights that Relate to the Business which claims or rights are material to the Business (except for any Excluded Liabilities); provided that any Seller may settle any such claim if such settlement does not provide for any relief other than the payment of monetary damages and effect through such payment is made by a Seller or one of Sellers’ Affiliates (other than the Closing DateAcquired Company) prior to the Closing; or
(xx) agree to do any of the foregoing.
Appears in 1 contract
Sources: Purchase Agreement (Cryoport, Inc.)
Operations Prior to the Closing Date. Except (a) Except as otherwise expressly contemplated by this Agreement, (b) as set forth on Schedule 7.02, or (c) as otherwise consented to in Schedule 7.4 writing by Buyer in its sole discretion, from the date hereof until the Closing Date or as contemplated by the earlier termination of this Agreement or except in accordance with the written approval of Buyer, which Buyer agrees shall not be unreasonably withheld or delayed, its terms:
(i) Seller shall use its reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall will use its reasonable best efforts consistent with good business practice to maintain (A) operate the business organization of the Company intact Facilities and preserve the goodwill of the employees, brokers, lenders and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment other Assets operated by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her relationship with the Company or not to continue employment with the Company after the Closing.
(b) In addition, and without limiting Section 7.4(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not to:
(i) amend its articles of incorporation or by-laws (or similar organizational documents);
(ii) issue, grant, sell or encumber any shares of its capital stock or other securities, or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes in the equity capital structure of the Company;
(iii) make any change in the Business or the operations of the Company outside the ordinary course of business;
(iv) make any capital expenditure or enter into any contract or commitment therefor in excess of $50,000; provided that, Subsidiaries in the ordinary course of business consistent with past practicein all material respects and to maintain, the Company may originate loans secured by 1-to-4 family residential real estate or cause to be maintained, all Assets in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company;
good working order and condition (vordinary wear and tear excepted) (Aincluding, without limitation, conducting all inspections and acts of service and repair with at least the level of care and frequency required to comply with (x) enter into any Contract which would have been a Company Agreement if in effect on manufacturer recommendations or guidelines or (y) customary industry practice for similar assets as the date hereofapplicable Asset), (B) enter into any Contract which would require the consent of a third party maintain books, accounts and records relating to such Assets in connection accordance with the consummation of the transactions contemplated by this Agreement or past custom and practice in all material respects, (C) modifypreserve intact the business organizations of Seller and its Subsidiaries, amend(D) preserve its current relationships with Third Parties, terminate including suppliers, vendors, customers, clients, contractors and others, related to the Assets or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on having business dealings related to the date hereof;
(vi) sell, lease (as lessor), transfer or otherwise dispose of Acquired Business (including any transfers from with respect to sales of products and volumes of production) and keep available the services of Company to Seller or any of its Affiliates)Employees, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties consultants and agents of the Company, other than, Selling Entities in connections with the case services such persons provided in respect of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including Assets and the settlement of any claims or litigation) other than Acquired Business in the ordinary course of business, and (E) comply with all Applicable Laws and Orders applicable to the Assets and Acquired Business consistent with past practiceand to give prompt notice to Buyer of any notice of any material damage or any material Casualty Loss and any notice received or made by Seller of any claim asserting any material tort or violation of Applicable Law or any new Proceeding that (in each case) relates to such Assets or the Acquired Business;
(viiiii) createwithout limiting the foregoing, incur Seller will not, and will cause its Subsidiaries not to:
(A) liquidate, dissolve, recapitalize or assumeotherwise wind up its operations related to the Assets;
(B) terminate, cancel, materially amend or modify, grant a waiver or consent with respect to or extend any Material Contract, in each case other than any immaterial changes made in the ordinary course of business, or agree enter in to createany Contract that could be a Material Contract;
(C) violate, incur breach or assumedefault under, or take or fail to take any action that (with or without notice or lapse of time or both) could reasonably constitute a violation, breach of, or default under, any Indebtedness material term or enter intoprovision of any Acquired Contract or any Acquired Permit, as lesseeincluding, without limitation, any capitalized lease payment obligations thereunder;
(as defined D) sell, lease, transfer, abandon, permit to lapse, fail to maintain, exclusively license, assign or otherwise dispose of any material Assets, in Statement of Financial Accounting Standards No. 13), each case other than in the ordinary course of business;
(ixE) accelerate disclose any material trade secrets or delay collection know-how related to, associated with or arising from the Acquired Business or any Assets to any Person that is not subject to any confidentiality or non-disclosure agreement;
(F) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any notes material assets, securities, properties, interests or accounts receivable businesses for the conduct of the Acquired Business, in advance each case other than pursuant to existing Contracts described on Schedule 7.02(ii)(F); (G) other than as permitted by Section 7.02(ii)(F), make any material loans, advances or capital contributions to, or investments in, any other Person (other than any Subsidiary of or beyond their regular due dates or Seller) with respect to the dates involving more Business, other than $25,000 when the same would have been collected advances to employees in the ordinary course of the Business consistent with past practicebusiness;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled Affiliates.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. (a) Except as set forth The Company shall operate and carry on its business in Schedule 7.4 or as contemplated by this Agreement or except with the written approval Ordinary Course of BuyerBusiness including, which Buyer agrees shall not be unreasonably withheld or delayedwithout limitation, Seller the processing of cash receipts and disbursements. The Company shall use its all commercially reasonable efforts to operate and shall use its reasonable efforts to cause the Company to carry on the Business only in the ordinary course and substantially as presently operated. Consistent with the foregoing, Seller shall cause the Company to keep and maintain the material assets of the Company in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain preserve its goodwill, prospects, rights, properties, assets and business, and to preserve and protect the business organization of the Company intact and preserve the goodwill of the Company's relationships with its suppliers, contractors, employees, brokerscustomers, lenders including without limitation, its current and others having business relations with the Company. In connection therewith, Seller shall not, and shall not permit the Company to, with respect to any employee of the Company, (i) transfer such employee to Seller or an Affiliate of Seller, (ii) offer such employee employment by Seller or an Affiliate of Seller after the Closing Date or (iii) otherwise attempt to persuade any such employee to terminate his or her prospective relationship with the Company or not Girl Scouts Councils with whom it has a Contract, relating to continue employment with the Company after the Closingsale of cookies thereto.
(b) In addition, and without limiting Notwithstanding Section 7.4(a5.6(a), except as expressly contemplated by this Agreement or except with the express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Seller the Company shall not, with respect to the Equity Interests, the Company or the Business, and Seller cause the Company not toexcept as allowed on Schedule 5.6:
(i) amend its articles other than is required pursuant to applicable Laws, take any act listed in subparagraph (a) through (j) of incorporation or by-laws (or similar organizational documents);Section 3.8; or
(ii) issueother than in the Ordinary Course of Business, grant, sell enter into or encumber terminate any Material Contract;
(iii) not issue any shares of its capital stock or other securitiesissue any distribution or dividend thereon of property or capital stock; provided, however, notwithstanding anything herein to the contrary, the Company shall be entitled to (i) distribute or issue, grant, sell or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for forgive the acquisition, issuance, sale, pledge or other disposition of any shares of its capital stock or other securities or make any other changes promissory note received from Parent in the equity capital structure respect of the Company;
Shanghai and Tainjin joint ventures, and (iiiii) make distributions from available cash on hand from time to time in any change in amount or amounts to Parent on or prior to the Business or end of business on the operations of Friday prior to the Company outside the ordinary course of businessClosing Date;
(iv) make any capital expenditure or enter into or contract for any contract hedging or commitment therefor in excess of $50,000; provided that, similar derivative transaction other than in the ordinary course Ordinary Course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the CompanyBusiness;
(v) (A) enter into any Contract engage in the offering of special programs whether written or oral including, without limitation, trade discounts, special payment terms, consignment programs, pricing changes or announced price increases which would have been a Company Agreement if will be effective in effect on the date hereof, (B) enter into any Contract which would require future other than in the consent Ordinary Course of a third party in connection with the consummation of the transactions contemplated by this Agreement or (C) modify, amend, terminate or grant any consent or waiver under any Company Agreement or any Contract that would have been a Company Agreement if it were in effect on the date hereof;Business; or
(vi) sell, lease (as lessor), transfer enter into or otherwise dispose issue letter of (including any transfers from the Company to Seller or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of (A) the Equity Interests or (B) the assets or properties of the Company, other than, credit guarantees in the case of this clause (B), Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) connection with route man loans other than in the ordinary course Ordinary Course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13), other than in the ordinary course of business;
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates involving more than $25,000 when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date involving more than $25,000 when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) except as expressly contemplated by Section 7.9, make, or agree to make, any distribution or other disposition of assets (other than cash and cash equivalents) to Seller or any of its Affiliates;
(xii) institute any material increase in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to employees of the Company, except for payments related to stay bonus, transaction completion bonus, severance payments or other similar payments made on or prior to the Closing Date as a result of this Agreement or the transactions contemplated hereby;
(xiii) make any material increase in the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices;
(A) except as required by applicable Requirements of Law, prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), or (B) settle or otherwise compromise any claim related to Taxes, enter into any closing agreement or similar agreement related to Taxes, otherwise settle any dispute relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(xv) make any change in the accounting policies applied in the preparation of the financial statements contained in Schedule 5.4, unless such change is required by GAAP;
(xvi) originate, acquire, hold, sell, transfer, securitize or hedge loans secured by real estate; provided that, in the ordinary course of business consistent with past practice, the Company may originate loans secured by 1-to-4 family residential real estate in an aggregate principal amount not to exceed $2,000,000 per month; provided further that Seller shall not originate any loans secured by real estate on behalf of the Company or transfer any loans secured by real estate to the Company; or
(xvii) make any material change in internal control over financial reporting, other than any change required by GAAP or any change made by Seller with respect to all of its Controlled AffiliatesBusiness.
(c) The Company shall keep all insurance policies set forth on Schedule 5.22, or suitable replacements therefor, in full force and effect through As of the Closing Date, any net intercompany receivables, payables, loans and any other corporate charges then existing between the Company, Parent and any affiliate (excluding the Company's Subsidiaries) shall be settled or forgiven (implementing whichever action is most tax advantageous to the Company) and any intercompany agreement between such parties shall be terminated.
Appears in 1 contract
Sources: Stock Purchase Agreement (Flowers Industries Inc /Ga)