Restrictions on Business. Except as expressly contemplated by this Agreement, Section 4.04, or Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall not: (i) amend any of its Organizational Documents; (ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the Company; (iii) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests; (iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders or any of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person; (v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof; (vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company; (vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables; (viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices; (ix) cancel any debts or waive any claims or rights of material value; (x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes; (xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance); (xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets; (xiii) enter into any Contract restricting in any material respect the operation of the Business; (xiv) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing; (xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person; (xvi) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries; (xvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization; (xviii) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods; (xix) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix); (xx) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation; (xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company; (xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License; (xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract; (xxiv) enter into or engage in any transaction with the Stockholders, any of any of their family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease; (xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets; (xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or (xxvii) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, as set forth in Section 4.04, or Schedule 4.056.2 of the Seller Disclosure Schedule, or as Parent Buyer may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement hereof until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, Seller and Selling Subsidiary shall not and shall ensure that their respective Subsidiaries do not take any of the Company shall notfollowing actions with respect to the Business, the Transferred Assets or the Assumed Liabilities:
(ia) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business business consistent with past practice (but practice, enter into any Contract that would be required to be disclosed in any event not any Indebtedness to the Stockholders or any of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants Section 4.12 of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on Seller Disclosure Schedule had it been entered into prior to the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiiib) enter into any Contract restricting in any material respect the operation of the Business;
(xivc) modify or amend in any material respect or terminate any Transferred Contract, other than pursuant to the expiration of a Transferred Contract in accordance with its terms, provided that Seller and Selling Subsidiary shall not allow any Contract for the supply of Third Party Components to lapse;
(d) other than in the ordinary course of business, directly or indirectly engage in any transaction, arrangement or contract with any officer, director, stockholder or other insider or Affiliate of Seller or Selling Subsidiary directly related to the Business or the Transferred Assets;
(e) other than sales of Inventory in the ordinary course of business consistent with past practice, sell, lease, license, transfer or otherwise dispose of or encumber any Transferred Assets, or grant or otherwise create or consent to the creation of any Lien, easement, covenant, restriction, assessment or charge affecting any Transferred Assets or any part thereof;
(f) sell, transfer or otherwise dispose of, lease, license, or otherwise distribute any Licensed IP so as to prevent such Licensed IP from being licensed to Buyer under the License Agreement;
(g) make any material changes to the Business Products;
(h) enter into any material financing or guarantee arrangement, agreement or undertaking with any customer of the Business or any financial institution, leasing company or similar business that permits recourse to Buyer or any of its Subsidiaries which would constitute an Assumed Liability;
(i) cancel, compromise, release or assign any Indebtedness owed to the Business or any claims held by the Business;
(j) (A) incur any Indebtedness or guarantee any Indebtedness or guarantee any Indebtedness of another Person, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of another Person or (B) enter into any arrangements having the economic effect of any of the foregoing or make any loans, advances or capital contributions to, or investments in, any other Person, in each case of clause (A) or (B) as would impose any Liability or obligation on Buyer or the Business or the Transferred Assets to be conveyed at Closing to Buyer;
(k) make or change any material Tax election, adopt or change any method of Tax accounting method, enter into any closing agreementaccounting, settle or compromise any Tax claim or assessment, file enter into any amended Tax Returnclosing agreement with any Taxing Authority, consent to any material Tax Return, extension or any claim for Tax refund, or extend or waive waiver of the limitation period applicable to any Tax claim or assessment, or file any amended Tax Return or claim for refund of Taxes, in each case to the extent that it would affect the Acquired Assets bind Buyer or the Business any of its Affiliates after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvil) grant any severance, change-in-control, termination pay or similar pay benefits (in cash or otherwise) to any current or former employeeBusiness Employee, including any officer, director, independent contractor except as required under the terms of any pre-existing employment agreement or consultant arrangement disclosed in Section 4.15(e) of the Company Seller Disclosure Schedule or their spouses, dependents, or beneficiariespursuant to Section 8.3(a);
(xviim) terminate the employment of any Business Employee, except for cause, provided Seller provides notice to Buyer prior to any such termination;
(n) adopt, establish, enter into, amend or terminate any Business Employee Benefit Plan with respect to any Business Employees, enter into any employee agreement, agree to pay any special bonus or special remuneration to any Business Employee, or increase or agree to increase the salaries, wage rates, or other compensation or benefits of any Business Employee, except as required under applicable Law or the terms of any pre-existing employment agreement or arrangement disclosed in the Seller Disclosure Schedule;
(o) implement any facility closing or other layoff of any Business Employees that could implicate the WARN Act or any social plan or redundancy program with the labor departments, unions or works council with any of the European Union countries;
(p) make any material changes to the working conditions of the Automatic Transfer Employees that have not either been announced or agreed to under a collectively bargained agreement;
(q) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, recapitalization or other reorganization;
(xviiir) except as it relates disclose any Confidential Information to Excluded Assets or any Person (other than to Buyer and its Affiliates and other than in the ordinary course of business consistent with past practicein circumstances in which reasonable confidentiality restrictions have been imposed), take or omit abandon or permit to take lapse any action that has Transferred IP (other than Patents expiring at the end of their statutory terms (and not as a result of any act or would reasonably be expected omission by Seller or any of its Subsidiaries, including a failure by Seller or any of its Subsidiaries to have the effect of accelerating sales to customers pay any required registration or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periodsmaintenance fees));
(xixs) alter, amend, modify, violate or terminate any of the terms of any Leases;
(t) fail to make any capital expenditures or commitment therefore as set forth in Section 6.2(t) of the Seller Disclosure Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise other than as set forth in Schedule 4.05(xix)Section 6.2(t) of the Seller Disclosure Schedule;
(xxu) except as relates make any changes to Excluded Assetsits normal and customary practices regarding the solicitation, booking and fulfillment of orders or the shipment and delivery of goods relating to the Business, including through channel partners;
(v) compromise, settle or waive any material claims or rights of the Business;
(w) commence any Action relating to the Business or the Acquired Transferred Assets other than (i) for the routine collection of amounts owed, owed or (ii) in such cases where the failure to commence litigation could have a Business Material Adverse Effect, provided that the Company shall Seller consult with the Parent Buyer prior to filing such litigation;
(xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the Stockholders, any of any of their family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxviix) enter into any Contract to do, or take, or agree in writing or otherwise to take take, or consent topropose to take, any of the foregoing actionsactions described in Section 6.2(a) through Section 6.2(w), inclusive.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Device Technology Inc)
Restrictions on Business. Except as expressly contemplated by this Agreement, as set forth in Section 4.04, or Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall not:
(i) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of any class of capital stock, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock Units or other ownership interests, or declare, set aside or pay any dividend or other distribution to any membermembers, or otherwise in respect of its capital stock Units or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders Members or any of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiii) enter into any Contract restricting in any material respect the operation of the Business;
(xiv) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvi) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xvii) [Reserved];
(xviii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviiixix) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xixxx) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix4.05(xx) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix4.05(xx);
(xxxxi) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation;
(xxixxii) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxiixxiii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiiixxiv) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxivxxv) enter into or engage in any transaction with the StockholdersMembers, any of any of their the Members’ family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease2.22;
(xxvxxvi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvixxvii) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxviixxviii) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, Section 4.04, or Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall not:
(i) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stockany Membership Interests, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock Membership Interest or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock Membership Interests or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders Members or any of their his Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiii) enter into any Contract restricting in any material respect the operation of the Business;
(xiv) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvi) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviii) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xix) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix);
(xx) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation;
(xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the StockholdersMembers, any of any of their the Members’ family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company;
(xxvii) use vendor accounts payable to finance the purchase of inventory for the Company; or
(xxviixxviii) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, Section 4.04, or Schedule 4.05, Agreement or as Parent Buyer may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from during the date of this Agreement until the earlier to occur of the Pre-Closing and the valid termination of this Agreement in accordance with the terms hereofPeriod, the Company and its Subsidiaries shall not:
(ia) amend any of its their Organizational Documents;
(iib) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Optionsoptions, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the CompanyCompany or any of its Subsidiaries;
(iiic) split, combine or reclassify any shares of capital stock stock, units, membership interests or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its shares of capital stock stock, units, membership interests or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(ivd) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business business of the Company and its Subsidiaries consistent with past practice (but in any event not any Indebtedness to the Stockholders Seller or any of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(ve) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the CompanyCompany or any of its Subsidiaries, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vif) except in the ordinary course of Business business consistent with past practices of the Company and not in excess of One Hundred Thousand Dollars ($25,000 100,000) (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets assets of the Company or any of its Subsidiaries or enter into any other commitment or transaction that is material to the CompanyCompany and its Subsidiaries (considered as a whole);
(viig) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viiih) pay, discharge or satisfy before it is due any material claim or liability of the Company or any of its Subsidiaries or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s or any of its Subsidiaries’ prior practices;
(ixi) cancel any debts or waive any claims or rights of material value;
(xj) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xik) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets assets of the Company or any of its Subsidiaries or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xiil) except in the ordinary course of Business business consistent with past practices of the Company or any of its Subsidiaries and not in excess of One Hundred Thousand Dollars ($25,000 100,000) (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assetsassets;
(xiiim) enter into any Contract contract restricting in any material respect the operation of the Business;
(xivn) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets assets or business of the Business Company or any of its Subsidiaries after the Closing;
(xvA) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or its Subsidiaries or their spouses, dependents or beneficiaries other than except (1) in the ordinary course of business consistent with past practices of the Company and its Subsidiaries and so long as not in excess of One Hundred Thousand Dollars ($100,000) (individually or cumulative), (2) as required by Law or (3) as provided for in any existing written agreements as of the date hereof; (iiB) change the terms of employment or service for any such person person; or (iii) take any action to increase the amount of or accelerate the vesting vesting, funding or payment of any compensation or benefits to any such person;
(xvip) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or its Subsidiaries or their spouses, dependents, or beneficiaries;
(xviiq) establish, amend or terminate any Benefit Plan, except as required by applicable Law or as specifically provided in this Agreement;
(r) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviiis) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xixt) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix);
(xx) except as relates to Excluded Assets, commence any Action actions, suits, claims, investigations or other legal proceedings relating to the Business Company or the Acquired Assets any of its Subsidiaries other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company and its Subsidiaries shall consult with the Parent Buyer prior to filing such litigation;
(xxiu) except in the ordinary course of business consistent with past practices of the Company and its Subsidiaries and so long as not in excess of One Hundred Thousand Dollars ($100,000) (individually or cumulative), enter into any Contract of any kind with any third party, which contract continues after the Closing Date and cannot be terminated by the Company or any of its Subsidiaries on not more than 30 days’ notice without any liability on the part of the Company or any of its Subsidiaries;
(v) except in the ordinary course of business consistent with past practice of the Company and its Subsidiaries, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any contract or any Permit;
(w) except in the ordinary course of Business consistent with past practice, exercise any right or option under or extend or renew any contract;
(x) enter into or engage in any transaction with the officer, directors, or employee of the Company or any of its Subsidiaries, any of any of their family members or any Affiliate thereof
(y) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of One Hundred Thousand Dollars ($25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii100,000) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the Stockholders, any of any of their family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assetsassets of the Company or any of its Subsidiaries;
(xxviz) except in the ordinary course of business consistent with past practices of the Company, sell any inventory Inventory of the CompanyCompany or any of its Subsidiaries; or
(xxviiaa) enter into any Contract contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, Section 4.04, Sections 7.08 or Schedule 4.057.09 of the Disclosure Schedules, or as Parent Buyer may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from during the date of this Agreement until the earlier to occur of the Pre-Closing and the valid termination of this Agreement in accordance with the terms hereofPeriod, the Company shall not:
(ia) amend any of its Organizational Documents;
(iib) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Optionsoptions, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the Company;
(iiic) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(ivd) (A) incur or assume any Indebtedness, other than (i) trade payables incurred in the ordinary course of the Business business of the Company consistent with past practice (but in any event not any Indebtedness to the Stockholders Seller or any of their Affiliates)) and (ii) the Warrant Holders Notes; (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(ve) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vif) except in the ordinary course of Business business consistent with past practices of the Company and not in excess of $25,000 35,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets assets of the Company or enter into any other commitment or transaction that is material to the Company;
(viig) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viiih) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ixi) cancel any debts or waive any claims or rights of material value;
(xj) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xik) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xiil) except in the ordinary course of Business business consistent with past practices of the Company and not in excess of $25,000 35,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assetsassets;
(xiiim) enter into any Contract contract restricting in any material respect the operation of the Business;
(xivn) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets assets or business of the Business Company after the Closing;
(xvi) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than except (1) in the ordinary course of business consistent with past practices of the Companies and so long as not in excess of $35,000 (individually or cumulative), (2) as required by Law or (3) as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person person; or (iii) take any action to increase the amount of or accelerate the vesting vesting, funding or payment of any compensation or benefits to any such person;
(xvip) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xviiq) establish, amend or terminate any Benefit Plan, except as required by applicable Law or as specifically provided in this Agreement;
(r) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviiis) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business business of the Company to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xixt) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xixSection 7.09(s) of the Disclosure Schedules or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix)Section 7.09(s) of the Disclosure Schedules;
(xxu) except as relates to Excluded Assets, commence any Action actions, suits, claims, investigations or other legal proceedings relating to the Business or the Acquired Assets Company other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent Buyer prior to filing such litigation;
(xxiv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 35,000 (individually or cumulative), enter into any Contract contract of any kind with any third party, which Contract contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxiiw) except in the ordinary course of the Business business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract contract or any LicensePermit;
(xxiiix) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contractcontract;
(xxivy) enter into or engage in any transaction with the Stockholdersofficer, directors, or employee of the Company, any of any of their family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 Section 3.18(a) and Section 3.18(b) of the Disclosure Schedules or is a Facility Lease;
(xxvz) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 35,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assetsassets of the Company;
(xxviaa) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxviibb) enter into any Contract contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, as set forth in Section 4.04, or as set forth on Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall notnot after the date of this Agreement:
(i) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of any class of capital stock, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any memberstockholder, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders Stockholder or any of their his Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 20,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 20,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiii) enter into any Contract restricting in any material respect the operation of the Business;
(xiv) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvi) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviii) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xix) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix);
(xx) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation;
(xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 20,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the StockholdersStockholder, any of any of their the Stockholder’s family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 20,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxvii) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, as set forth in Section 4.04, or Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall not:
(i) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders or any of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(viii) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(viiv) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 15,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(viiv) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viiivi) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ixvii) cancel any debts or waive any claims or rights of material value;
(xviii) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xiix) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xiix) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 15,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiiixi) enter into any Contract restricting in any material respect the operation of the Business;
(xivxii) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xvxiii) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or person, (iii) take any action to increase the amount of or accelerate the vesting or payment of benefits or any compensation or benefits to any such personperson or under any Benefit Plan, or (iv) make any commitment or agreement to do any of the foregoing;
(xvixiv) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xviixv) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviiixvi) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xixxvii) fail to except in the ordinary course of Business consistent with past practices of the Company and not in excess of $15,000 (individually or cumulative), make any capital expenditures expenditure or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix)therefore;
(xxxviii) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation;
(xxixix) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 15,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxiixx) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiiixxi) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxivxxii) enter into or engage in any transaction with the Stockholders, any of any of their the Stockholders’ family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease2.22;
(xxvxxiii) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 15,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvixxiv) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxviixxv) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract
Restrictions on Business. Except as expressly contemplated by this Agreement, as set forth in Section 4.04, or Schedule 4.057.2 of the Seller Disclosure Schedule, or as Parent Buyer may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, each Seller shall not and shall ensure that its Subsidiaries do not take any of the Company shall notfollowing actions with respect to the Business, the Acquired Assets or the Assumed Liabilities:
(ia) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business business consistent with past practice (but practice, enter into any Material Contract that would be required to be disclosed in any event not any Indebtedness Section 5.12(a) of the Seller Disclosure Schedule had it been entered into prior to the Stockholders or any date of their Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Personthis Agreement;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiiib) enter into any Contract restricting in any material respect the operation of the Business;
(xivc) modify or amend in any material respect or terminate any Material Contract, other than pursuant to the expiration of a Material Contract in accordance with its terms;
(d) other than in the ordinary course of business, directly or indirectly engage in any transaction, arrangement or contract with any officer, director, stockholder, member, or other insider or Affiliate of any Seller relating to the Business;
(e) sell, lease, license, transfer, or otherwise dispose of or encumber any Acquired Assets, or grant or otherwise create or consent to the creation of any Lien, easement, covenant, restriction, assessment, or charge affecting any Acquired Assets or any part thereof;
(f) sell, transfer, or otherwise dispose of, lease, license, or otherwise distribute any Transferred IPR or grant or otherwise create or consent to the creation of any Lien, covenant, restriction, or assessment affecting any Transferred IPR or any part thereof;
(g) enter into any material financing or guarantee arrangement, agreement, or undertaking with any customer of the Business or any financial institution, leasing company, or similar business that permits recourse to Buyer or any of its Subsidiaries which would constitute an Assumed Liability;
(h) cancel, compromise, release, or assign any Indebtedness owed to the Business or any claims held by the Business, in each case except as relates to Excluded Assets;
(i) (i) incur any Indebtedness or guarantee any Indebtedness or guarantee any Indebtedness of another Person, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of another Person, or (ii) enter into any arrangements having the economic effect of any of the foregoing or make any loans, advances or capital contributions to, or investments in, any other Person, in each case of clause (i) or (ii) as would impose any Liability or obligation on Buyer or the Business or the Acquired Assets to be conveyed at Closing to Buyer;
(j) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvik) grant any severance, change-in-control, termination pay, or similar pay benefits (in cash or otherwise) to any current or former employeeBusiness Employee, including any officer, director, independent contractor except as required under the terms of any pre-existing employment agreement or consultant of arrangement disclosed in the Company or their spouses, dependents, or beneficiariesSeller Disclosure Schedule;
(xviil) adopt, establish, enter into, amend, or terminate any Business Employee Benefit Plan or any Business Employee Employment Agreement, agree to pay any special bonus or special remuneration to any Business Employee, or increase or agree to increase the salaries, wage rates, or other compensation or benefits of any Business Employee, except as required under applicable Law or the terms of any pre-existing employment agreement or arrangement disclosed in the Seller Disclosure Schedule;
(m) implement any facility closing or other layoff of any Business Employees that could implicate the WARN Act, including due to aggregation with any prior layoff;
(n) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviiio) disclose any Confidential Information to any Person (other than to Buyer and its Affiliates and other than in the ordinary course of business in circumstances in which reasonable confidentiality restrictions have been imposed), or abandon or permit to lapse any Transferred IPR;
(p) except as it relates to Excluded Assets or in the ordinary course of business consistent with past current practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xixq) alter, amend, modify, violate, or terminate any of the terms of any Leases, enter into any agreement to purchase or sell any interest in Real Property, grant any security interest in any Leased Real Property, enter into any lease, sublease, license or other occupancy agreement with respect to any Leased Real Property, or relocate or permit any of its Subsidiaries to relocate any Transferred Employees to other Leased Real Property or any other employees or parties into the Leased Real Property;
(r) fail to make any capital expenditures or commitment therefore as set forth in Section 7.2(r) of the Seller Disclosure Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix)commitments;
(xxs) except as relates to Excluded Assets, compromise, settle, or waive any material claims or rights of the Business;
(t) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Business Material Adverse Effect, provided that the Company Sellers shall consult with the Parent Buyer prior to filing such litigation;
(xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the Stockholders, any of any of their family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company; or
(xxviiu) enter into any Contract to do, or take, or agree in writing or otherwise to take take, or consent topropose to take, any of the foregoing actionsactions described in Section 7.2(a) through Section 7.2(t), inclusive.
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Restrictions on Business. Except as expressly contemplated by this Agreement, Section 4.04, or Schedule 4.05, or as Parent may otherwise consent in writing, such consent not to be unreasonably withheld, at all times from the date of this Agreement until the earlier to occur of the Closing and the valid termination of this Agreement in accordance with the terms hereof, the Company shall not:
(i) amend any of its Organizational Documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of Options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stockany Partnership Interests, or any other securities or other ownership interests of the Company;
(iii) split, combine or reclassify any shares of capital stock Partnership Interest or other ownership interests, or declare, set aside or pay any dividend or other distribution to any member, or otherwise in respect of its capital stock Partnership Interests or other ownership interests or redeem or otherwise acquire any of its securities or other ownership interests;
(iv) (A) incur or assume any Indebtedness, other than trade payables incurred in the ordinary course of the Business consistent with past practice (but in any event not any Indebtedness to the Stockholders Partners or any of their his Affiliates); (B) assume, guarantee, endorse (except for checks or other negotiable instruments in the ordinary course of business) or otherwise become liable or responsible (whether directly, contingently or otherwise) for any obligations of any other Person; or (C) make any loans, advances or capital contributions to, or investments in, any other Person;
(v) adopt, modify or terminate any (i) employment, severance, retention, change in control or other compensation or benefit agreement, plan or arrangement with any current or former employees, officers, directors, independent contractors or consultants of the Company, or (ii) other than as required by Law, any Benefit Plan or any plan or arrangement that would constitute a Benefit Plan if in existence on the date hereof;
(vi) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), acquire, sell, lease, transfer or dispose of any properties or Assets or enter into any other commitment or transaction that is material to the Company;
(vii) modify, other than in an immaterial manner, any policy or procedure with respect to the collection of receivables;
(viii) pay, discharge or satisfy before it is due any material claim or liability of the Company or fail to pay any such item in a timely manner, in each case except in accordance with the Company’s prior practices;
(ix) cancel any debts or waive any claims or rights of material value;
(x) except to the extent required by Law, change any accounting principle or method or make any election for purposes of foreign, federal, state or local income Taxes;
(xi) take or suffer any action that would result in (A) the creation, or consent to the imposition, of any Lien on any of the properties or Assets of the Company or (B) the cancellation, termination, lapse or non-renewal of any insurance policy (unless such policy is replaced with comparable insurance);
(xii) except in the ordinary course of Business consistent with past practices of the Company and not in excess of $25,000 (individually or cumulative), make or incur any expenditure, lease or commitment for additions to property or equipment or other tangible Assets;
(xiii) enter into any Contract restricting in any material respect the operation of the Business;
(xiv) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, settle or compromise any Tax claim or assessment, file any amended Tax Return, any material Tax Return, or any claim for Tax refund, or extend or waive the limitation period applicable to any Tax claim or assessment, in each case to the extent that it would affect the Acquired Assets or the Business after the Closing;
(xv) grant any bonuses, whether monetary or otherwise, or increase wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Company or their spouses, dependents or beneficiaries other than as required by Law or as provided for in any existing written agreements as of the date hereof; (ii) change the terms of employment or service for any such person or (iii) take any action to increase the amount of or accelerate the vesting or payment of any compensation or benefits to any such person;
(xvi) grant any severance, change-in-control, or similar pay benefits (in cash or otherwise) to any current or former employee, officer, director, independent contractor or consultant of the Company or their spouses, dependents, or beneficiaries;
(xvii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(xviii) except as it relates to Excluded Assets or in the ordinary course of business consistent with past practice, take or omit to take any action that has or would reasonably be expected to have the effect of accelerating sales to customers or revenues of the Business to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods;
(xix) fail to make any capital expenditures or commitment therefore as set forth in Schedule 4.05(xix) or make any capital expenditures or commitments not otherwise set forth in Schedule 4.05(xix);
(xx) except as relates to Excluded Assets, commence any Action relating to the Business or the Acquired Assets other than (i) for the routine collection of amounts owed, or (ii) in such cases where the failure to commence litigation could have a Material Adverse Effect, provided that the Company shall consult with the Parent prior to filing such litigation;
(xxi) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), enter into any Contract of any kind with any third party, which Contract continues after the Closing Date and cannot be terminated by the Company on not more than 30 days’ notice without any liability on the part of the Company;
(xxii) except in the ordinary course of the Business consistent with past practice of the Company, amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any Contract or any License;
(xxiii) except in the ordinary course of the Business consistent with past practice, exercise any right or option under or extend or renew any Contract;
(xxiv) enter into or engage in any transaction with the StockholdersPartners, any of any of their the Partners’ family members or any Affiliate thereof other than any transaction that is described on Schedule 2.22 or is a Facility Lease;
(xxv) except in the ordinary course of business consistent with past practices of the Company and so long as not in excess of $25,000 (individually or cumulative), sell, lease, license, transfer, or otherwise dispose of any Acquired Assets;
(xxvi) except in the ordinary course of business consistent with past practices of the Company, sell any inventory of the Company;
(xxvii) use vendor accounts payable to finance the purchase of inventory for the Company; or
(xxviixxviii) enter into any Contract to do, or take, or agree in writing or otherwise to take or consent to, any of the foregoing actions.
Appears in 1 contract