Pending Closing. Without limiting the generality of Section 5.2(a), pending the Closing, Sellers and W▇▇▇▇ Canada shall, except as set forth in Section 5.3 of the Disclosure Schedule and except as specifically contemplated by this Agreement: (a) conduct and carry on the US Business and the Canadian Business only in the Ordinary Course; (b) not purchase, sell, lease, mortgage, pledge or otherwise acquire or dispose of any properties or assets of or used in connection with the US Business or the Canadian Business, except for products sold or supplies purchased, sold or otherwise disposed of in the Ordinary Course; (c) not suffer or permit the creation of any Lien (other than Permitted Liens) upon any of the Purchased Assets or assets of W▇▇▇▇ Canada, other than in the Ordinary Course; (d) not waive, release or cancel any material claims against third parties or material debts owing to, or any rights of W▇▇▇▇ US or W▇▇▇▇ Canada which have any value; (e) not increase or otherwise change the rate or nature of the compensation (including wages, salaries, bonuses, and benefits under pension, profit sharing, deferred compensation and similar plans or programs) which is paid or payable to any employee employed in the US Business or by W▇▇▇▇ Canada, nor increase the size of the workforce of W▇▇▇▇ Canada; (f) keep the tangible personal property used in the operation of the US Business and the Canadian Business in the same condition it was in on the date of this Agreement, and replace any such personal property which is necessary for the conduct of the US Business or the Canadian Business which becomes worn out, lost, stolen or destroyed, during the period from the date of this Agreement until the Closing Date; (g) not enter into, or become obligated under, any Contract with respect to the US Business or the Canadian Business, except for any Contract (i) having a term of one (1) year or less, (ii) involving either a payment by or to W▇▇▇▇ US or W▇▇▇▇ Canada of less than $100,000 and (iii) entered into in the Ordinary Course; (h) not materially change, amend, terminate or otherwise modify any Contract set forth in Section 7.15(a) of the Disclosure Schedule to which W▇▇▇▇ US or W▇▇▇▇ Canada is a party; (i) maintain in full force and effect with respect to the US Business and the Canadian Business, policies of insurance of the same type, character and coverage as the policies currently carried and described in Section 7.18 of the Disclosure Schedule; (j) not make, or commit to make, any payment, contribution or award under or into any bonus, pension, profit sharing, deferred compensation or similar plan, program or trust (other than any such payment, contribution or award paid in cash by W▇▇▇▇ US prior to the Closing or as required by the terms of such plan); (k) refrain from doing any act or omitting to do any act, or permitting any act or omission to act, which will cause a material breach by either W▇▇▇▇ US or W▇▇▇▇ Canada of any Contract, as applicable; (l) not make any changes in its accounting systems, policies, principles or practices that relate to W▇▇▇▇ Canada or the Purchased Assets, including, but not limited to, the accounting policies, principles and practices used by W▇▇▇▇ US that relate to the Purchased Assets or W▇▇▇▇ Canada to estimate (i) inventory reserves, (ii) allowances for doubtful accounts, sales returns and sales discounts, and (iii) customer allowances; (m) not make any loans, advances or capital contributions to, or investments in, any other Person; (n) not authorize or make any capital expenditures which individually are in excess of $25,000 or in the aggregate are in excess of $50,000; (o) not change its historical practice with respect to the payment of current liabilities or the collection of Accounts Receivable; (p) not declare, enter into, set aside, issue or pay any dividend or distribution, other than a distribution of the US Retained Assets, the US Retained Liabilities, the Canadian Retained Assets, the Canadian Retained Liabilities and the shares of the Retained Entity to any Person; (q) not enter into, or become a party to, any personal property lease with lease payments during the remaining term of the lease in excess of $10,000; and (r) not agree to do any of the items prohibited by Section 5.3(b), (c), (d), (e), (g), (h), (j), (k), (l), (m), (n),(o) , (p), or (q).
Appears in 1 contract
Pending Closing. Without limiting the generality of Section 5.2(a), pending the Closing, Sellers and W▇▇▇▇ Canada shall, except as set forth in Section 5.3 of the Disclosure Schedule and except as specifically contemplated by this Agreement:
(a) conduct and carry on the US Business and the Canadian Business only in the Ordinary Course;
(b) not purchase, sell, lease, mortgage, pledge or otherwise acquire or dispose of any properties or assets of or used in connection with the US Business or the Canadian Business, except for products sold or supplies purchased, sold or otherwise disposed of in the Ordinary Course;
(c) not suffer or permit the creation of any Lien (other than Permitted Liens) upon any of the Purchased Assets or assets of W▇▇▇▇ Canada, other than in the Ordinary Course;
(d) not waive, release or cancel any material claims against third parties or material debts owing to, or any rights of W▇▇▇▇ US or W▇▇▇▇ Canada which have any value;
(e) not increase or otherwise change the rate or nature of the compensation (including wages, salaries, bonuses, and benefits under pension, profit sharing, deferred compensation and similar plans or programs) which is paid or payable to any employee employed in the US Business or by W▇▇▇▇ Canada, nor increase the size of the workforce of W▇▇▇▇ Canada;
(f) keep the tangible personal property used in the operation of the US Business and the Canadian Business in the same condition it was in on the date of this Agreement, and replace any such personal property which is necessary for the conduct of the US Business or the Canadian Business which becomes worn out, lost, stolen or destroyed, during the period from the date of this Agreement until the Closing Date;
(g) not enter into, or become obligated under, any Contract with respect to the US Business or the Canadian Business, except for any Contract (i) having a term of one (1) year or less, (ii) involving either a payment by or to W▇▇▇▇ US or W▇▇▇▇ Canada of less than $100,000 and (iii) entered into in the Ordinary Course;
(h) not materially change, amend, terminate or otherwise modify any Contract set forth in Section 7.15(a) of the Disclosure Schedule to which W▇▇▇▇ US or W▇▇▇▇ Canada is a party;
(i) maintain in full force and effect with respect to the US Business and the Canadian Business, policies of insurance of the same type, character and coverage as the policies currently carried and described in Section 7.18 of the Disclosure Schedule;
(j) not make, or commit to make, any payment, contribution or award under or into any bonus, pension, profit sharing, deferred compensation or similar plan, program or trust (other than any such payment, contribution or award paid in cash by W▇▇▇▇ US prior to the Closing or as required by the terms of such plan);
(k) refrain from doing any act or omitting to do any act, or permitting any act or omission to act, which will cause a material breach by either W▇▇▇▇ US or W▇▇▇▇ Canada of any Contract, as applicable;
(l) not make any changes in its accounting systems, policies, principles or practices that relate to W▇▇▇▇ Canada or the Purchased Assets, including, but not limited to, the accounting policies, principles and practices used by W▇▇▇▇ US that relate to the Purchased Assets or W▇▇▇▇ Canada to estimate (i) inventory reserves, (ii) allowances for doubtful accounts, sales returns and sales discounts, and (iii) customer allowances;
(m) not make any loans, advances or capital contributions to, or investments in, any other Person;
(n) not authorize or make any capital expenditures which individually are in excess of $25,000 or in the aggregate are in excess of $50,000;
(o) not change its historical practice with respect to the payment of current liabilities or the collection of Accounts Receivable;
(p) not declare, enter into, set aside, issue or pay any dividend or distribution, other than a distribution of the US Retained Assets, the US Retained Liabilities, the Canadian Retained Assets, the Canadian Retained Liabilities and the shares of the Retained Entity to any Person;
(q) not enter into, or become a party to, any personal property lease with lease payments during the remaining term of the lease in excess of $10,000; and (r) not agree to do any of the items prohibited by Section 5.3(b), (c), (d), (e), (g), (h), (j), (k), (l), (m), (n),(on), (o) , (p), or (q).
Appears in 1 contract