Operations Prior to the Closing Date. (a) From the date of this Agreement to the Closing Date, except as otherwise expressly required by this Agreement or any Ancillary Agreement, for matters identified on Section 7.1(a) of the Business Disclosure Schedule or with the prior written approval of Buyer (which shall not be unreasonably withheld, conditioned or delayed), Seller (x) shall, and shall cause its Affiliates to, operate and carry on the Business in the Ordinary Course of Business, including using reasonable best efforts to (A) preserve the relationships and goodwill of the Business and HRS with Governmental Bodies, employees, policyholders, contractholders, beneficiaries, customers, Distributors, mutual fund organizations and others having business relations with the Business and (B) keep available the services of the Business Employees and (y) shall not, and shall cause its Affiliates not to: (i) permit any change or amendment (whether by merger, consolidation or otherwise) to the organizational documents of HRS; (ii) sell, transfer, pledge, dispose of or encumber any Equity Interest in HRS or permit HRS to issue Equity Interests or securities of HRS or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Interest or securities of HRS; (iii) effect any recapitalization, reclassification or other change in the capitalization of HRS; (iv) (A) declare, set aside or pay any non-cash dividends, or make any other non-cash distributions, in respect of any Equity Interest or other securities of HRS or (B) declare, set aside or pay any cash dividends or make any cash distributions in respect of any Equity Interest or other securities of HRS except, solely in the case of this clause (B), (1) in compliance with Applicable Law and all Contracts to which HRS is a party and (2) following written notice by Seller to Buyer of its intention to take such action at least three (3) Business Days prior to the declaration, setting aside or payment of any such cash dividends or making of any such cash distributions; (v) repurchase, redeem, repay or otherwise acquire any Equity Interest or other securities of HRS; (vi) make any capital contribution or investment in HRS; (vii) permit HRS to incur any Indebtedness or permit HRS to assume, grant, guarantee, endorse or otherwise become responsible for, the Liabilities of any other Person or make any loans, advances or capital contributions to, or investments in, any other Person, in each case, other than intercompany obligations in the Ordinary Course of Business that will be settled at or prior to the Closing in accordance with Section 8.6(b); (viii) enter into, or amend or modify any material terms or conditions of, or waive any rights under, any Material Contract (or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract), or consent to the termination of (other than at its stated expiry date) any Material Contract; (ix) institute any new or increase or accelerate the vesting or payment of any amounts or benefits under any Employee Benefit Plan, other than (A) as required by the terms of any such Employee Benefit Plan in effect on the date hereof or Applicable Law, (B) such actions that do not affect any Business Employees, or (C) such actions in the Ordinary Course of Business that apply to substantially all similarly situated employees of Seller and its Affiliates; (x) increase the base salary, incentive compensation or benefits of any Business Employee, other than changes for Business Employees below the Assistant Vice President level in the Ordinary Course of Business or changes made pursuant to contractual commitments in effect on the date hereof; (xi) hire any Business Employee with a title of Assistant Vice President or more senior or, other than in the Ordinary Course of Business, terminate the employment of any Business Employee having a title of Assistant Vice President or more senior, other than for cause; (xii) settle or compromise any Action relating to the Business or otherwise against HRS, other than any such settlement or compromise that is solely a monetary settlement; provided that Seller promptly provides Buyer with reasonable notice prior to any such settlement or compromise; (xiii) waive any claim or rights of, or cancel any debts to, HRS or, to the extent related to the Business, Seller or its Affiliates (other than HRS), in each case, other than in the Ordinary Course of Business; (xiv) pay, discharge, compromise or satisfy any Assumed Liabilities, other than (A) payment, discharge, compromise or satisfaction in the Ordinary Course of Business or (B) payment, discharge or satisfaction in accordance with the terms of the Assumed Liabilities to the extent specifically recorded as a liability in the Reference Date Financial Statements; (xv) voluntarily subject any Acquired Asset or the assets of HRS to any Encumbrance or voluntarily permit or suffer such to exist, other than, in each case, Permitted Encumbrances; (xvi) (A) acquire or dispose of any asset or property of HRS or any asset or property that presently constitutes, or at Closing would constitute, part of the Acquired Assets, other than in the Ordinary Course of Business, or (B) make any capital expenditure with respect to any such asset or property for which the aggregate consideration paid or payable in any individual transaction is in excess of fifty thousand dollars ($50,000) or in the aggregate for all such transactions in excess of two hundred and fifty thousand dollars ($250,000); (xvii) enter into any reinsurance, retrocession or other similar Contract under which any risks under a Covered Insurance Policy would be ceded or reinsured; (xviii) in respect of HRS, the Business or the Acquired Assets (A) make, revoke or change any material Tax election or settle or compromise any material Tax Liability, claim or assessment or agree to an extension or waiver of the limitation period to any material Tax claim or assessment or grant any power of attorney with respect to Taxes or enter into any material closing agreement with respect to any Tax or surrender any material right to claim a Tax refund, (B) adopt or materially change any accounting method for Tax purposes or otherwise, or (C) file any amended U.S. federal, state, or foreign income Tax Return or any other material amended Tax Return, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law; (xix) in respect of HRS, the Business or the Acquired Assets (A) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies or principles in effect on the date hereof with respect to reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration or (B) adopt any new reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration methods, policies or principles, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable; (xx) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies, practices or principles (A) of HRS or (B) used in connection with the Business, in each case, in effect on the date hereof with respect to accounting methodology, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable; (xxi) make any filing with any Governmental Body relating to (A) the withdrawal or surrender of any Seller Permit or (B) the withdrawal by Cedant from any lines or kinds of business relating to the Business; (xxii) cease providing or materially modify (including as to timing, form and amount) any material services to HRS or the Business that are provided to HRS or the Business as of the date hereof; (xxiii) amend or modify any terms or conditions of, or consent to the termination of (other than at its stated expiry date), any Assigned Lease; (xxiv) except as otherwise expressly required by Applicable Law or in the Ordinary Course of Business, amend any Covered Insurance Policies or related Contracts in connection with any Plan; (xxv) undertake any of the actions set forth on Section 7.1(a)(xxv) of the Business Disclosure Schedule; or (xxvi) agree or commit to do any of the foregoing. (b) Nothing in this Section 7.1 shall be deemed to: (i) limit the transfer of Excluded Assets or Excluded Liabilities; (ii) limit the transfer of investment assets beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by HRS from HRS to Seller or its other Affiliates prior to the Closing; or (iii) other than Section 7.1(a)(xxv), prohibit Seller and its Affiliates from entering into, amending, or waiving any rights under any Contract (other than a Material Contract or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract) between Seller and its Affiliates (including HRS), on the one hand, and any Plan sponsor, Plan trustee or other non-affiliated third-party administrator on behalf of a Plan, on the other hand, in the Ordinary Course of Business.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartford Financial Services Group Inc/De)
Operations Prior to the Closing Date. (a) From the date of this Agreement Prior to the Closing DateClosing, Seller shall maintain the Purchased Assets and operate the Facility only in the ordinary course consistent with past practice in conformance with all Legal Requirements, except as otherwise expressly provided in this Agreement. Consistent with the foregoing and to the extent permitted or required by the Bankruptcy Case, Seller shall use best efforts to continue operating the Facility as a going concern, and to maintain the business organization of the Facility intact.
(b) Except as otherwise expressly provided in this Agreement or in a Cash Collateral Order or post-petition financing Order in the Bankruptcy Case, or in any Ancillary Agreement, for matters identified on Section 7.1(a) Order of the Business Disclosure Schedule or Bankruptcy Court (unless with the prior express written approval of Buyer (which shall not be unreasonably withheld, conditioned or delayedBuyer), and except for the DIP Credit Agreement, prior to the Closing, Seller (x) shall, and shall cause its Affiliates to, operate and carry on the Business in the Ordinary Course of Business, including using reasonable best efforts to (A) preserve the relationships and goodwill of the Business and HRS with Governmental Bodies, employees, policyholders, contractholders, beneficiaries, customers, Distributors, mutual fund organizations and others having business relations with the Business and (B) keep available the services of the Business Employees and (y) shall not, and shall cause its Affiliates not toexcept as may be required by applicable law:
(i) permit make any change capital expenditures inconsistent with the Budget or amendment (whether by mergerenter into any Contract or commitment therefor, consolidation or otherwise) except in each case in the ordinary course of business pursuant to the organizational documents of HRSexisting Contracts;
(ii) sell, transfer, pledge, dispose enter into any Contract for or relating to the Facility that cannot be assigned to Buyer or a permitted assignee of or encumber any Equity Interest in HRS or permit HRS to issue Equity Interests or securities of HRS or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Interest or securities of HRSBuyer under Section 11.4;
(iii) effect enter into any recapitalization, reclassification or other change in Contract for the capitalization purchase of HRSreal property;
(iv) (A) declare, set aside or pay enter into any non-cash dividends, or make any other non-cash distributions, in respect lease of any Equity Interest or other securities of HRS or (B) declare, set aside or pay any cash dividends or make any cash distributions in respect of any Equity Interest or other securities of HRS except, solely in the case of this clause (B), (1) in compliance with Applicable Law and all Contracts to which HRS is a party and (2) following written notice by Seller to Buyer of its intention to take such action at least three (3) Business Days prior to the declaration, setting aside or payment of any such cash dividends or making of any such cash distributionsreal property;
(v) repurchaseother than the use of Inventory in the ordinary course of business consistent with past practice, redeemsell, repay lease (as lessor), transfer or otherwise acquire dispose of (including any Equity transfer from the Facility to any Affiliates of Seller), or impose or suffer to be imposed, any Lien, Claim, Interest or Encumbrance (other securities than Assumed Liabilities) on any of HRSthe Purchased Assets;
(vi) make other than in the ordinary course of business consistent with past practice, purchase any capital contribution or investment in HRSassets inconsistent with the Budget;
(vii) permit HRS cancel or settle any material debts owed to incur any Indebtedness or permit HRS to assume, grant, guarantee, endorse or otherwise become responsible for, material claims held by the Liabilities Facility (including the settlement of any other Person claims or make litigation) or deviate from the terms of any loans, advances or capital contributions to, or investments in, any other Person, in each case, other than intercompany obligations in the Ordinary Course of Business that will be settled at or prior to the Closing in accordance with Section 8.6(b)existing contract;
(viii) enter intocompromise, or amend or modify any material terms or conditions of, or waive any rights under, any Material Contract (or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract)settle, or consent to the termination of (other than at its stated expiry date) judgment in, any Material Contractone or more Actions or Proceedings or institute any Action or Proceeding, including concerning any Intellectual Property;
(ix) institute any new or increase or accelerate the vesting or payment of any amounts or benefits under any Employee Benefit Plan, other than (A) as required by the terms of any such Employee Benefit Plan in effect on the date hereof or Applicable Law, (B) such actions that do not affect any Business Employeesenter into, or (C) such actions in the Ordinary Course of Business that apply agree to substantially all similarly situated employees of Seller and its Affiliatesenter into, any sale-leaseback transactions;
(x) increase the base salary, incentive compensation delay or benefits accelerate payment of any Business Employeeaccount payable or other liability of the Facility beyond or in advance of its due date, other than changes for Business Employees below the Assistant Vice President level except in the Ordinary Course ordinary course of Business or changes made pursuant to contractual commitments in effect on the date hereofbusiness consistent with past practice;
(xi) hire make or rescind any Business Employee with a title of Assistant Vice President or more senior or, other than election in the Ordinary Course of Business, terminate the employment of any Business Employee having a title of Assistant Vice President or more senior, other than for causerelation to Taxes;
(xii) settle enter into or compromise amend (A) any Action relating to third party payor contract or (B) any other agreement (or incur any commitment) that involves or may involve total annual expenditure or revenues (individually or in the Business or otherwise against HRS, other than any such settlement or compromise that is solely a monetary settlement; provided that Seller promptly provides Buyer with reasonable notice prior to any such settlement or compromiseaggregate) in excess of $10,000;
(xiii) waive except pursuant to any claim Cash Collateral Order and DIP Credit Agreement, incur any indebtedness for borrowed money, enter into any material guarantee, indemnity or rights ofother agreement to secure any obligation of a third party or create any Lien, Claim, Interest or cancel Encumbrance for the benefit of a third party over any debts to, HRS or, to of the extent related to the Business, Seller or its Affiliates (other than HRS), in each case, other than in the Ordinary Course of BusinessPurchased Assets;
(xiv) pay, discharge, compromise or satisfy make any Assumed Liabilities, other than (A) payment, dischargeor otherwise remit any monies, compromise or satisfaction in the Ordinary Course to any of Business or (B) payment, discharge or satisfaction in accordance with the terms its Affiliates outside of the Assumed Liabilities to the extent specifically recorded as a liability in the Reference Date Financial Statementsordinary course of business;
(xv) voluntarily subject incur any Acquired Asset or material Liability except in the assets ordinary course of HRS to any Encumbrance or voluntarily permit or suffer such to exist, other than, in each case, Permitted Encumbrancesbusiness consistent with past practice;
(xvi) (A) acquire change any accounting policy or dispose of any asset or property of HRS or any asset or property that presently constitutes, or at Closing would constitute, part of the Acquired Assets, other than practice except in the Ordinary Course ordinary course of Business, or (B) make any capital expenditure with respect to any such asset or property for which the aggregate consideration paid or payable in any individual transaction is in excess of fifty thousand dollars ($50,000) or in the aggregate for all such transactions in excess of two hundred and fifty thousand dollars ($250,000)business;
(xvii) enter into amend the certificate of incorporation or by-laws or comparable organization documents of Seller in any reinsurance, retrocession or other similar Contract under which any risks under a Covered Insurance Policy would be ceded or reinsuredmaterial respect;
(xviii) other than in respect of HRS, the Business or the Acquired Assets (A) make, revoke or change any material Tax election or settle or compromise any material Tax Liability, claim or assessment or agree to an extension or waiver of the limitation period to any material Tax claim or assessment or grant any power of attorney with respect to Taxes or enter into any material closing agreement with respect to any Tax or surrender any material right to claim a Tax refund, (B) adopt or materially change any accounting method for Tax purposes or otherwise, or (C) file any amended U.S. federal, state, or foreign income Tax Return or any other material amended Tax Return, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law;
(xix) in respect of HRS, the Business or the Acquired Assets (A) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies or principles in effect on the date hereof with respect to reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration or (B) adopt any new reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration methods, policies or principles, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xx) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies, practices or principles (A) of HRS or (B) used in connection with the Business, in each case, in effect on the date hereof with respect to accounting methodology, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xxi) make any filing with any Governmental Body relating to (A) the withdrawal or surrender of any Seller Permit or (B) the withdrawal by Cedant from any lines or kinds ordinary course of business relating to the Business;
(xxii) cease providing or materially modify (including as to timingconsistent with past practice, form and amount) any material services to HRS or the Business that are provided to HRS or the Business as of the date hereof;
(xxiii) amend or modify any terms or conditions of, or consent to the termination of (other than at its stated expiry date), any Assigned Lease;
(xxiv) except as otherwise expressly required by Applicable Law or in the Ordinary Course of Business, amend any Covered Insurance Policies or related Contracts in connection with any Plan;
(xxv) undertake any of the actions set forth on Section 7.1(a)(xxv) of the Business Disclosure Schedule; or
(xxvi) agree or commit to do any of the foregoing.
(b) Nothing in this Section 7.1 shall be deemed to: (i) limit the transfer of Excluded Assets modify or Excluded Liabilities; (ii) limit the transfer of investment assets beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by HRS from HRS to Seller or its other Affiliates prior to the Closing; or (iii) other than Section 7.1(a)(xxv), prohibit Seller and its Affiliates from entering into, amending, or waiving terminate any rights under any Contract (other than a Material Assumed Contract or any Contract thatAssumed Lease, if entered into prior to the date of this Agreement, would have been a Material Contract) between Seller and its Affiliates (including HRS), on the one hand, and any Plan sponsor, Plan trustee or other non-affiliated third-party administrator on behalf of a Plan, on the other hand, in the Ordinary Course of Business.or
Appears in 1 contract
Sources: Asset Purchase Agreement
Operations Prior to the Closing Date. (a) From Between the date execution of this Agreement to and the Closing Date, except as unless otherwise consented to in writing by LSB 2 or expressly permitted or required by under this Agreement or any Ancillary Agreement, for matters identified on Section 7.1(a) each of Tubos and the Company shall ensure that each of the Business Disclosure Schedule or with the prior written approval of Buyer (which shall not be unreasonably withheld, conditioned or delayed), Seller (x) shall, Company and shall cause its Affiliates to, operate and carry on the Business in the Ordinary Course of Business, including using reasonable best efforts to (A) preserve the relationships and goodwill of the Business and HRS with Governmental Bodies, employees, policyholders, contractholders, beneficiaries, customers, Distributors, mutual fund organizations and others having business relations with the Business and (B) keep available the services of the Business Employees and (y) Apolo America shall not, and shall cause its Affiliates not to:
(i) permit make any material change in its business or amendment (whether by mergerits operations, consolidation or otherwise) except such changes as may be required to the organizational documents of HRScomply with any applicable Law;
(ii) sellenter into any Contract or commitment to make a capital expenditure in excess of the amount equivalent in Reais to US$500,000, transfer, pledge, dispose of or encumber any Equity Interest in HRS or permit HRS according to issue Equity Interests or securities of HRS or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Interest or securities of HRSthe Exchange Rate;
(iii) effect enter into any recapitalization, reclassification material transaction or other change in the capitalization of HRS;
(iv) (A) declare, set aside or pay any non-cash dividends, or make any other non-cash distributions, in respect of any Equity Interest or other securities of HRS or (B) declare, set aside or pay any cash dividends or make any cash distributions in respect of any Equity Interest or other securities of HRS except, solely in the case of this clause (B), (1) in compliance with Applicable Law and all Contracts to which HRS is a party and (2) following written notice by Seller to Buyer of its intention to take such action at least three (3) Business Days prior to the declaration, setting aside or payment of any such cash dividends or making of any such cash distributions;
(v) repurchase, redeem, repay or otherwise acquire any Equity Interest or other securities of HRS;
(vi) make any capital contribution or investment in HRS;
(vii) permit HRS to incur any Indebtedness or permit HRS to assume, grant, guarantee, endorse or otherwise become responsible for, the Liabilities of any other Person or make any loans, advances or capital contributions to, or investments in, any other Person, in each case, other than intercompany obligations in the Ordinary Course of Business that will be settled at or prior to the Closing in accordance with Section 8.6(b);
(viii) enter into, modify, terminate or amend or modify renew any material terms or conditions of, or waive any rights under, any Material Contract (or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract), or consent to the termination of (other than at its stated expiry date) any Material Contract;
(ix) institute any new or increase or accelerate the vesting or payment of any amounts or benefits under any Employee Benefit Plan, other than (A) as required by the terms of any such Employee Benefit Plan in effect on the date hereof or Applicable Law, (B) such actions that do not affect any Business Employees, or (C) such actions in the Ordinary Course of Business that apply to substantially all similarly situated employees of Seller and its Affiliates;
(x) increase the base salary, incentive compensation or benefits of any Business Employee, other than changes for Business Employees below the Assistant Vice President level in the Ordinary Course of Business or changes made pursuant to contractual commitments in effect on the date hereof;
(xi) hire any Business Employee with a title of Assistant Vice President or more senior or, other than in the Ordinary Course of Business, terminate the employment of any Business Employee having a title of Assistant Vice President or more senior, other than for cause;
(xii) settle or compromise any Action relating to the Business or otherwise against HRS, other than any such settlement or compromise that is solely a monetary settlement; provided that Seller promptly provides Buyer with reasonable notice prior to any such settlement or compromise;
(xiii) waive any claim or rights of, or cancel any debts to, HRS or, to the extent related to the Business, Seller or its Affiliates (other than HRS), in each case, other than in the Ordinary Course ordinary course of Businessbusiness;
(iv) enter into any Contract for the purchase of real property;
(v) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Lien on, any of the Company Assets or the assets of Apolo America, other than inventory and personal property sold or otherwise disposed of in the ordinary course of business and other than Permitted Exceptions;
(vi) cancel any Indebtedness owed to or claims held by the Company or Apolo America (including the settlement of any claims or litigation) other than in the ordinary course of business, except as provided for in Section 7.3;
(vii) create, incur or assume, or agree to create, incur or assume, any Indebtedness, other than in the ordinary course of business (which shall expressly exclude the creation, incurrence or assumption of Indebtedness on behalf of an Affiliate);
(viii) declare, set aside, make, or agree to make, any distribution of Company Assets or the assets of Apolo America or dividend to Tubos or any of its Affiliates, or repurchase, redeem or otherwise acquire any Common Shares or Apolo America Shares;
(ix) effect any recapitalization, reclassification, share split or like change in the capitalization of the Company or Apolo America, except for the capitalization of the Company in the total aggregate amount of R$84,868,094.12 and related issuance of Common Shares, in connection with the transfer of the Special Oto ▇▇▇▇▇ production line (R$40,688,948.74), the payment in Common Shares of outstanding Indebtedness of the Company for inter-company loans (R$11,491,839.90) and the capitalization of the monetary correction reserve (R$32,687,305.48);
(x) 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 maintained for the Company’s and Apolo America’s employees, other than as required by applicable Law;
(xi) make any material change in the compensation of the Company’s or Apolo America’s employees, other than changes made in accordance with normal compensation practices or pursuant to existing Contractual commitments and consistent with past compensation practices;
(xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or Apolo America or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Company or Apolo America;
(xiii) make or rescind any election relating to Taxes, change the Company’s or Apolo America’s method of Tax accounting or change the Tax accounting treatment of any item, settle or compromise any claim or proceedings relating to Taxes;
(xiv) pay, discharge, compromise or satisfy make any Assumed Liabilities, other than (A) payment, discharge, compromise or satisfaction material change in the Ordinary Course of Business or (B) payment, discharge or satisfaction accounting policies applied in accordance with the terms preparation of the Assumed Liabilities to Financial Statements or the extent specifically recorded as a liability in the Reference Date Apolo Americas Financial Statements, unless such change is required by Brazilian GAAP;
(xv) voluntarily subject enter into any Acquired Asset Contract, understanding or commitment that restrains, restricts, limits or impedes the assets ability of HRS the Company or Apolo America to compete or conduct any Encumbrance business or voluntarily permit line of business in any geographic area;
(xvi) terminate, amend, restate, supplement or suffer waive any material rights under any Material Contract;
(xvii) make any change in the Company’s or Apolo America’s Charter Documents or issue any Common Shares or Apolo America Shares or other equity securities (or securities exchangeable, convertible or exercisable for Common Shares, Apolo America Shares or other equity securities of the Company or Apolo America); or
(xviii) agree in writing or otherwise to take any of the prohibited actions described in this Section 7.2(a).
(b) Between the execution of this Agreement and the Closing Date, unless otherwise consented to in writing by Tubos or expressly permitted or required under this Agreement, each of LSB 2 and Lone Star shall ensure that Star Brazil Cayman shall not:
(i) make any material change in its business or its operations, except such changes as may be required to existcomply with any applicable Law;
(ii) except for the Promissory Note, other thanenter into any Contract in excess of US$10,000;
(iii) except for the Promissory Note, enter into any material transaction or enter into, modify, terminate or renew any material Contract, in each case, Permitted Encumbrancesother than in the ordinary course of business;
(xviiv) enter into any Contract for the purchase of real property;
(Av) acquire sell, lease (as lessor), transfer or otherwise dispose of (including any asset or property transfers to any of HRS or any asset or property that presently constitutesits Affiliates), or at Closing would constitutemortgage or pledge, part or impose or suffer to be imposed any Lien on, any of the Acquired Assetsassets of Star Brazil Cayman;
(vi) cancel any Indebtedness owed to or claims held by Star Brazil Cayman (including the settlement of any claims or litigation) other than in the ordinary course of business;
(vii) create, incur or assume, or agree to create, incur or assume, any Indebtedness, other than in the Ordinary Course ordinary course of Businessbusiness (which shall expressly exclude the creation, incurrence or (B) make any capital expenditure with respect to any such asset or property for which the aggregate consideration paid or payable in any individual transaction is in excess assumption of fifty thousand dollars ($50,000) or in the aggregate for all such transactions in excess Indebtedness on behalf of two hundred and fifty thousand dollars ($250,000an Affiliate);
(xviiviii) enter into declare, set aside, make, or agree to make, any reinsurancedistribution of the assets of Star Brazil Cayman or dividend to LSB 2 or any of its Affiliates, retrocession or other similar Contract under which repurchase, redeem or otherwise acquire any risks under a Covered Insurance Policy would be ceded or reinsuredCayman Shares;
(xviiiix) effect any recapitalization, reclassification, share split or like change in respect the capitalization of HRSStar Brazil Cayman;
(x) make or rescind any election relating to Taxes, the Business or the Acquired Assets (A) make, revoke change Star Brazil Cayman’s method of Tax accounting or change the Tax accounting treatment of any material Tax election or item, settle or compromise any material Tax Liability, claim or assessment or agree proceedings relating to an extension or waiver of the limitation period to any material Tax claim or assessment or grant any power of attorney with respect to Taxes or enter into any material closing agreement with respect to any Tax or surrender any material right to claim a Tax refund, (B) adopt or materially change any accounting method for Tax purposes or otherwise, or (C) file any amended U.S. federal, state, or foreign income Tax Return or any other material amended Tax Return, in each case, except to the extent required after the date hereof by any concurrent change in Applicable LawTaxes;
(xix) in respect of HRS, the Business or the Acquired Assets (Axi) make any changes change in Star Cayman Brazil’s Charter Documents or issue any material respect in, Cayman Shares or waive the application in any material respect of, the methods, policies or principles in effect on the date hereof with respect to reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration or (B) adopt any new reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration methods, policies or principles, in each caseother equity securities, except to in exchange for the extent required after the date hereof by any concurrent change in Applicable LawPromissory Note (or securities exchangeable, SAP convertible or GAAP, as applicable;
(xx) make any changes in any material respect in, exercisable for Cayman Shares or waive the application in any material respect of, the methods, policies, practices or principles (A) of HRS or (B) used in connection with the Business, in each case, in effect on the date hereof with respect to accounting methodology, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xxi) make any filing with any Governmental Body relating to (A) the withdrawal or surrender of any Seller Permit or (B) the withdrawal by Cedant from any lines or kinds of business relating to the Business;
(xxii) cease providing or materially modify (including as to timing, form and amount) any material services to HRS or the Business that are provided to HRS or the Business as of the date hereof;
(xxiii) amend or modify any terms or conditions of, or consent to the termination of (other than at its stated expiry dateequity securities), any Assigned Lease;
(xxiv) except as otherwise expressly required by Applicable Law or in the Ordinary Course of Business, amend any Covered Insurance Policies or related Contracts in connection with any Plan;
(xxv) undertake any of the actions set forth on Section 7.1(a)(xxv) of the Business Disclosure Schedule; or
(xxvixii) agree in writing or commit otherwise to do take any of the foregoing.
(b) Nothing prohibited actions described in this Section 7.1 shall be deemed to: (i) limit the transfer of Excluded Assets or Excluded Liabilities; (ii) limit the transfer of investment assets beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by HRS from HRS to Seller or its other Affiliates prior to the Closing; or (iii) other than Section 7.1(a)(xxv7.2(b), prohibit Seller and its Affiliates from entering into, amending, or waiving any rights under any Contract (other than a Material Contract or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract) between Seller and its Affiliates (including HRS), on the one hand, and any Plan sponsor, Plan trustee or other non-affiliated third-party administrator on behalf of a Plan, on the other hand, in the Ordinary Course of Business.
Appears in 1 contract
Sources: Contribution Agreement (Lone Star Technologies Inc)
Operations Prior to the Closing Date. (a) From the date of this Agreement to the Closing Date, except as otherwise expressly required by this Agreement or any Ancillary Agreement, for matters identified on Section 7.1(a) of the Business Disclosure Schedule or with the prior written approval of Buyer (which shall not be unreasonably withheld, conditioned or delayed), Each Asset Seller (x) shall, and Sellers shall cause its Affiliates Viskase Brazil and Newco Brazil to, use commercially reasonable efforts to operate and carry on the Business in the Ordinary Course of Business, including using reasonable best efforts to (A) preserve the relationships ordinary course and goodwill of the Business and HRS with Governmental Bodies, employees, policyholders, contractholders, beneficiaries, customers, Distributors, mutual fund organizations and others having business relations with the Business and (B) keep available the services of the Business Employees and (y) shall not, and shall cause its Affiliates not to:
(i) permit any change or amendment (whether by merger, consolidation or otherwise) to the organizational documents of HRS;
(ii) sell, transfer, pledge, dispose of or encumber any Equity Interest in HRS or permit HRS to issue Equity Interests or securities of HRS or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Interest or securities of HRS;
(iii) effect any recapitalization, reclassification or other change in the capitalization of HRS;
(iv) (A) declare, set aside or pay any non-cash dividends, or make any other non-cash distributions, in respect of any Equity Interest or other securities of HRS or (B) declare, set aside or pay any cash dividends or make any cash distributions in respect of any Equity Interest or other securities of HRS except, solely in the case of this clause (B), (1) in compliance with Applicable Law and all Contracts to which HRS is a party and (2) following written notice by Seller to Buyer of its intention to take such action at least three (3) Business Days prior to the declaration, setting aside or payment of any such cash dividends or making of any such cash distributions;
(v) repurchase, redeem, repay or otherwise acquire any Equity Interest or other securities of HRS;
(vi) make any capital contribution or investment in HRS;
(vii) permit HRS to incur any Indebtedness or permit HRS to assume, grant, guarantee, endorse or otherwise become responsible for, the Liabilities of any other Person or make any loans, advances or capital contributions to, or investments in, any other Person, in each case, other than intercompany obligations in the Ordinary Course of Business that will be settled at or prior to the Closing in accordance with Section 8.6(b);
(viii) enter into, or amend or modify any material terms or conditions of, or waive any rights under, any Material Contract (or any Contract that, if entered into substantially as operated immediately prior to the date of this Agreement. Consistent with the foregoing, would have been each Asset Seller shall, and Sellers shall cause Viskase Brazil and Newco Brazil to, use its commercially reasonable efforts consistent with good business practice to preserve the goodwill of the suppliers, contractors, licensors, employees, customers and distributors of the Business.
(b) Notwithstanding Section 7.4(a), except as set forth on 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), each Asset Seller shall not (with respect to the Business), and Sellers shall cause Viskase Brazil and Newco Brazil not to, in each case other than in the ordinary course of business:
(i) make any material change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) make any capital expenditure or enter into any contract or commitment therefor in excess of $500,000;
(iii) enter into any contract for the purchase of real property or exercise any option to extend a Material Contractlease listed in Schedule 5.9;
(iv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or consent mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the termination Purchased Assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the ordinary course of the Business and other than Permitted Encumbrances;
(v) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money (other than at money borrowed or advances from any of its stated expiry dateAffiliates in the ordinary course of business);
(vi) make, or agree to make, any Material Contractpayment or distribution of assets (other than cash) to any of its Affiliates (other than intercompany transactions in accordance with past practices);
(vii) institute any 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;
(viii) make any change in the compensation of its employees, other than changes made in accordance with normal compensation practices or pursuant to existing contractual commitments and consistent with past compensation practices;
(ix) institute make any new or increase or accelerate change in the vesting or payment accounting policies applied in the preparation of any amounts or benefits under any Employee Benefit Planthe Financial Statements, other than (A) as unless such change is required by the terms of any such Employee Benefit Plan in effect on the date hereof or Applicable Law, (B) such actions that do not affect any Business Employees, or (C) such actions in the Ordinary Course of Business that apply to substantially all similarly situated employees of Seller and its Affiliates;GAAP; or
(x) increase the base salaryissue any capital stock (or securities exchangeable, incentive compensation convertible or benefits exercisable for capital stock) of any Business Employee, Newco Brazil other than changes for Business Employees below the Assistant Vice President level in the Ordinary Course of Business or changes made pursuant to contractual commitments in effect on the date hereof;
(xi) hire any Business Employee with a title of Assistant Vice President or more senior or, other than in the Ordinary Course of Business, terminate the employment of any Business Employee having a title of Assistant Vice President or more senior, other than for cause;
(xii) settle or compromise any Action relating to the Business or otherwise against HRS, other than any such settlement or compromise that is solely a monetary settlement; provided that Seller promptly provides Buyer with reasonable notice prior to any such settlement or compromise;
(xiii) waive any claim or rights of, or cancel any debts to, HRS or, to the extent related to the Business, Seller or its Affiliates (other than HRS), in each case, other than in the Ordinary Course of Business;
(xiv) pay, discharge, compromise or satisfy any Assumed Liabilities, other than (A) payment, discharge, compromise or satisfaction in the Ordinary Course of Business or (B) payment, discharge or satisfaction in accordance with the terms of the Assumed Liabilities to the extent specifically recorded as a liability in the Reference Date Financial Statements;
(xv) voluntarily subject any Acquired Asset or the assets of HRS to any Encumbrance or voluntarily permit or suffer such to exist, other than, in each case, Permitted Encumbrances;
(xvi) (A) acquire or dispose of any asset or property of HRS or any asset or property that presently constitutes, or at Closing would constitute, part of the Acquired Assets, other than in the Ordinary Course of Business, or (B) make any capital expenditure with respect to any such asset or property for which the aggregate consideration paid or payable in any individual transaction is in excess of fifty thousand dollars ($50,000) or in the aggregate for all such transactions in excess of two hundred and fifty thousand dollars ($250,000);
(xvii) enter into any reinsurance, retrocession or other similar Contract under which any risks under a Covered Insurance Policy would be ceded or reinsured;
(xviii) in respect of HRS, the Business or the Acquired Assets (A) make, revoke or change any material Tax election or settle or compromise any material Tax Liability, claim or assessment or agree to an extension or waiver of the limitation period to any material Tax claim or assessment or grant any power of attorney with respect to Taxes or enter into any material closing agreement with respect to any Tax or surrender any material right to claim a Tax refund, (B) adopt or materially change any accounting method for Tax purposes or otherwise, or (C) file any amended U.S. federal, state, or foreign income Tax Return or any other material amended Tax Return, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law;
(xix) in respect of HRS, the Business or the Acquired Assets (A) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies or principles in effect on the date hereof with respect to reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration or (B) adopt any new reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration methods, policies or principles, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xx) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies, practices or principles (A) of HRS or (B) used in connection with the Business, in each case, in effect on the date hereof with respect to accounting methodology, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xxi) make any filing with any Governmental Body relating to (A) the withdrawal or surrender of any Seller Permit or (B) the withdrawal by Cedant from any lines or kinds of business relating to the Business;
(xxii) cease providing or materially modify (including as to timing, form and amount) any material services to HRS or the Business that are provided to HRS or the Business as of the date hereof;
(xxiii) amend or modify any terms or conditions of, or consent to the termination of (other than at its stated expiry date), any Assigned Lease;
(xxiv) except as otherwise expressly required by Applicable Law or in the Ordinary Course of Business, amend any Covered Insurance Policies or related Contracts in connection with any Plan;
(xxv) undertake any of the actions set forth on Section 7.1(a)(xxv) of the Business Disclosure Schedule; or
(xxvi) agree or commit to do any of the foregoingSellers.
(b) Nothing in this Section 7.1 shall be deemed to: (i) limit the transfer of Excluded Assets or Excluded Liabilities; (ii) limit the transfer of investment assets beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by HRS from HRS to Seller or its other Affiliates prior to the Closing; or (iii) other than Section 7.1(a)(xxv), prohibit Seller and its Affiliates from entering into, amending, or waiving any rights under any Contract (other than a Material Contract or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract) between Seller and its Affiliates (including HRS), on the one hand, and any Plan sponsor, Plan trustee or other non-affiliated third-party administrator on behalf of a Plan, on the other hand, in the Ordinary Course of Business.
Appears in 1 contract
Sources: Purchase Agreement (Bemis Co Inc)
Operations Prior to the Closing Date. (a) From the date of this Agreement to the Closing Date, except as otherwise expressly required by this Agreement or any Ancillary Agreement, for matters identified on Section 7.1(a) of the Business Disclosure Schedule or with the prior written approval of Buyer (which shall not be unreasonably withheld, conditioned or delayed), Seller (x) FFMC shall, and shall cause its Affiliates each of the Subsidiaries to, operate and carry on the Business only in the Ordinary Course ordinary course. Consistent with the foregoing, FFMC shall, and shall cause each of Businessthe Subsidiaries to, including using keep and maintain the Purchased Assets in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to (A) preserve the relationships and goodwill of the Business and HRS with Governmental Bodiessuppliers, contractors, licensors, employees, policyholders, contractholders, beneficiaries, customers, Distributors, mutual fund organizations distributors and others having business relations with the Business and Business.
(Bb) keep available Notwithstanding Section 7.4(a), except as expressly contemplated by this Agreement, except as set forth in Schedule 7.4(B) or except with the services express written approval of Buyer (which Buyer agrees shall not be unreasonably withheld or delayed), Sellers shall not with respect to the Business Employees and (y) shall not, and shall cause its Affiliates each of the Subsidiaries not to:):
(i) permit make any material change in the Business or amendment (whether by mergerits operations, consolidation or otherwise) except such changes as may be required to the organizational documents comply with any applicable Requirements of HRSLaw;
(ii) sell, transfer, pledge, dispose make any capital expenditure or enter into any contract or commitment therefor involving the payment by FFMC or any Subsidiary of or encumber any Equity Interest an amount in HRS or permit HRS excess of $100,000 (except for the purchase of three Kodak CD-ROM systems previously disclosed to issue Equity Interests or securities of HRS or grant options, warrants, calls or other rights to purchase or otherwise acquire any Equity Interest or securities of HRSBuyer);
(iii) effect enter into any recapitalization, reclassification contract for the purchase of real property or other change for the sale of any Owned Real Property listed in the capitalization of HRSSchedule 5.10;
(iv) sell, lease (A) declareas lessor), set aside transfer, assign or pay otherwise dispose of (including any non-cash dividendstransfers to any of its Affiliates), or make mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Purchased Assets, other non-cash distributions, in respect than inventory sold or otherwise disposed of any Equity Interest or other securities of HRS or (B) declare, set aside or pay any cash dividends or make any cash distributions in respect of any Equity Interest or other securities of HRS except, solely in the case ordinary course of this clause (B)the Business, (1) Permitted Encumbrances and personal property no longer useful in compliance with Applicable Law the ordinary course of the Business and all Contracts to which HRS is not having a party and (2) following written notice by Seller to Buyer fair market value in excess of its intention to take such action at least three (3) Business Days prior to $100,000 in the declaration, setting aside or payment of any such cash dividends or making of any such cash distributionsaggregate;
(v) repurchase, redeem, repay cancel any debts owed to or otherwise acquire claims held by it (including the settlement of any Equity Interest claims or litigation) other securities than in the ordinary course of HRSthe Business;
(vi) make create, incur, assume, guarantee or endorse or agree to create, incur, assume, guarantee or endorse any capital contribution indebtedness for borrowed money (other than money borrowed or investment advances from any of its Affiliates in HRSthe ordinary course of the Business) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13);
(vii) permit HRS to incur any Indebtedness accelerate or permit HRS to assume, grant, guarantee, endorse or otherwise become responsible for, the Liabilities delay collection of any other Person notes or make any loans, advances accounts receivable generated by the Business in advance of or capital contributions to, beyond their regular due dates or investments in, any other Person, in each case, other than intercompany obligations the dates when the same would have been collected in the Ordinary Course ordinary course of Business that will be settled at or prior to the Closing in accordance with Section 8.6(b)Business;
(viii) enter into, delay or amend accelerate payment of any account payable or modify any material terms other liability of the Business beyond or conditions of, in advance of its due date or waive any rights under, any Material Contract (or any Contract that, if entered into prior to the date of this Agreement, when such liability would have been a Material Contract), or consent to paid in the termination ordinary course of (other than at its stated expiry date) any Material Contractthe Business;
(ix) institute make, or agree to make, any new or increase or accelerate the vesting or payment of cash or distribution of assets to any amounts or benefits under any Employee Benefit Plan, of its Affiliates (other than (A) as required by the terms cash realized upon collection of any such Employee Benefit Plan in effect on the date hereof or Applicable Law, (B) such actions that do not affect any Business Employees, or (C) such actions receivables generated in the Ordinary Course ordinary course of Business that apply to substantially all similarly situated employees of Seller and its Affiliatesthe Business);
(x) institute any increase the base salaryin any profit-sharing, incentive compensation bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or benefits other employee benefit plan with respect to its current or former employees, except as may be required to comply with applicable Requirements of any Business Employee, other than changes for Business Employees below the Assistant Vice President level in the Ordinary Course of Business Law or changes made pursuant to contractual commitments contracts in effect on the date hereof; provided, however, that FFMC and the Subsidiaries, as the case may be, shall notify Buyer of any such permitted increase not later than the 10th day following the effectuation of such increase;
(xi) hire make any Business Employee with a title change in the compensation of Assistant Vice President or more senior orits employees whose salary and bonus exceeds $50,000, other than changes made in accordance with normal compensation practices and consistent with past compensation practices or pursuant to contracts in effect on the Ordinary Course of Businessdate hereof, terminate provided, however, that FFMC and the employment Subsidiaries, as the case may be, shall notify Buyer of any Business Employee having a title such permitted increase not later than the 10th day following the effectuation of Assistant Vice President or more senior, other than for causesuch increase;
(xii) settle make or compromise authorize any Action relating to change in the Business or otherwise against HRS, other than organizational documents of any such settlement or compromise that is solely a monetary settlement; provided that Seller promptly provides Buyer with reasonable notice prior to any such settlement or compromiseSubsidiary;
(xiii) waive merge any claim Subsidiary with or rights of, into or cancel consolidate any debts to, HRS or, to Subsidiary with any other Person or in any way reclassify any shares of the extent related to the Business, Seller or its Affiliates (other than HRS), in each case, other than in the Ordinary Course capital stock of Businessany Subsidiary;
(xiv) pay, discharge, compromise or satisfy make any Assumed Liabilities, other than (A) payment, discharge, compromise or satisfaction material change in the Ordinary Course amount or scope of Business or (B) payment, discharge or satisfaction in accordance with the terms of the Assumed Liabilities to the extent specifically recorded as a liability in the Reference Date Financial Statementsinsurance coverage currently carried;
(xv) voluntarily subject make any Acquired Asset or change in the assets accounting policies applied in the preparation of HRS to any Encumbrance or voluntarily permit or suffer such to exist, other than, the financial statements contained in each case, Permitted EncumbrancesSchedule 5.4;
(xvi) (A) acquire or dispose of hire any asset or property of HRS or any asset or property that presently constitutes, or at Closing would constitute, part of the Acquired Assets, other than in the Ordinary Course of Business, or (B) make any capital expenditure with respect to any such asset or property for which the aggregate consideration paid or payable in any individual transaction employee whose salary is in excess of fifty thousand dollars ($50,000) 50,000 or in enter into a contract with any consultant which requires an annual payment by the aggregate for all such transactions Division in excess of two hundred and fifty thousand dollars ($250,000)50,000;
(xvii) enter into any reinsurancedelay or postpone inventory purchases, retrocession repair and maintenance of real or personal properties, other similar Contract under which any risks under a Covered Insurance Policy would be ceded than delays or reinsuredpostponements in the ordinary course of business that do not adversely impair the services provided to customers;
(xviii) in respect of HRS, the Business or the Acquired Assets (A) make, revoke or change any material Tax election or settle or compromise any material Tax Liability, claim or assessment or agree to an extension or waiver of the limitation period to any material Tax claim or assessment or grant any power of attorney with respect to Taxes or enter into any material closing lease or license agreement with respect to any Tax (or surrender any material right to claim a Tax refund, (Bseries of related leases or licenses) adopt or materially change any accounting method for Tax purposes or otherwise, or (C) file any amended U.S. federal, state, or foreign income Tax Return or any other material amended Tax Return, in each case, except to which FFMC reasonably anticipates will involve the extent required after the date hereof by any concurrent change in Applicable Lawannual payment of more than $125,000;
(xix) in respect enter into any contract for the purchase of HRSraw materials, supplies, services or equipment which FFMC reasonably anticipates will involve the Business or the Acquired Assets (A) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies or principles in effect on the date hereof with respect to reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration or (B) adopt any new reserving, hedging, underwriting, investing, risk management, reinsurance, marketing or claims administration methods, policies or principles, in each case, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xx) make any changes in any material respect in, or waive the application in any material respect of, the methods, policies, practices or principles (A) annual payment of HRS or (B) used in connection with the Business, in each case, in effect on the date hereof with respect to accounting methodology, except to the extent required after the date hereof by any concurrent change in Applicable Law, SAP or GAAP, as applicable;
(xxi) make any filing with any Governmental Body relating to (A) the withdrawal or surrender of any Seller Permit or (B) the withdrawal by Cedant from any lines or kinds of business relating to the Business;
(xxii) cease providing or materially modify (including as to timing, form and amount) any material services to HRS or the Business that are provided to HRS or the Business as of the date hereof;
(xxiii) amend or modify any terms or conditions of, or consent to the termination of (other more than at its stated expiry date), any Assigned Lease;
(xxiv) except as otherwise expressly required by Applicable Law or in the Ordinary Course of Business, amend any Covered Insurance Policies or related Contracts in connection with any Plan;
(xxv) undertake any of the actions set forth on Section 7.1(a)(xxv) of the Business Disclosure Schedule$250,000; or
(xxvixx) agree or commit to do any of the foregoing.
(b) Nothing in this Section 7.1 shall be deemed to: (i) limit the transfer of Excluded Assets or Excluded Liabilities; (ii) limit the transfer of investment assets beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by HRS from HRS to Seller or its other Affiliates prior to the Closing; or (iii) other than Section 7.1(a)(xxv), prohibit Seller and its Affiliates from entering into, amending, or waiving any rights under any Contract (other than a Material Contract or any Contract that, if entered into prior to the date of this Agreement, would have been a Material Contract) between Seller and its Affiliates (including HRS), on the one hand, and any Plan sponsor, Plan trustee or other non-affiliated third-party administrator on behalf of a Plan, on the other hand, in the Ordinary Course of Business.
Appears in 1 contract