1Conduct of Business. (a) From the date hereof through the earlier of the termination of this Agreement or the Closing Date (the “Pre-Closing Period”), except as permitted by this Agreement or as set forth on Section 6.1(a) to the Company Disclosure Letter, the Acquired Companies shall, and the Seller Parties shall cause the Acquired Companies to, conduct their respective businesses only in the Ordinary Course. Without limiting the generality of the foregoing, during the Pre-Closing Period, except as permitted by this Agreement or as set forth on Section 6.1(a) to the Company Disclosure Letter, each Acquired Company shall (i) maintain its existence in good standing, (ii) maintain the general character of its businesses and conduct its businesses in a commercially reasonable manner, (iii) maintain proper business and accounting records relative to its businesses, (iv) use commercially reasonable efforts to preserve relationships with customers, suppliers, investors and insurers, (v) use commercially reasonable efforts to maintain its assets in good condition and repair, ordinary wear and tear excepted, (vi) maintain presently existing insurance coverage with respect to its businesses and (vii) pay its debts, Taxes and other obligations when due. (b) Without limiting the generality of the foregoing, during the Pre-Closing Period, except as permitted by this Agreement or as set forth on Section 6.1(b) to the Company Disclosure Letter, the Acquired Companies shall not, and the Seller Parties shall cause the Acquired Companies not to, without the prior written consent of Parent (not to be unreasonably withheld, delayed or conditioned) do any of the following: (i) enter into any Company Material Agreement or terminate or amend or modify in any material respect any existing Company Material Agreement other than in the Ordinary Course; (ii) (a) enter into, adopt, contribute to, or become obligated to contribute to, any Employee Benefit Plan or any other benefit plan, policy, program, arrangement or agreement of any kind, or (b) enter into any collective bargaining agreement or other similar agreement, (c) grant to any of their current or former employees, officers, directors, independent contractors or consultants with total compensation in the prior year in excess of $200,000 per year any increase in compensation, (d) cause or institute any plant closing or mass layoff as defined by WARN, (e) act to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant of any Acquired Company, or (f) hire, promote or terminate the employment of any current or former officer, manager or employee of any Acquired Company that had or would reasonably would be expected to have total compensation in excess of $200,000 per year; (iii) sell, transfer, assign or otherwise dispose of or encumber any of its assets in one transaction or a series of related transactions having a value in excess of $100,000 except in the Ordinary Course; (iv) cancel any debt owed to an Acquired Company or, other than in the Ordinary Course, waive or compromise any claim or right in one transaction or a series of related transactions; (v) make any capital expenditure or commitment relating to its businesses in excess of $50,000 individually, or $250,000 in the aggregate, other than expenditures necessary to maintain in good repair existing assets; (vi) except in the Ordinary Course with respect to the Warehouse Lines, incur, assume or guarantee any Indebtedness other than Indebtedness that will be repaid at or prior to the Closing Date; (vii) amend or modify in any manner the Assumed Indebtedness; (viii) other than in the Ordinary Course, issue, sell or agree to issue or sell (a) any shares of the equity securities of any Acquired Company or (b) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any equity securities of any Acquired Company; (ix) other than in the Ordinary Course, declare, set aside or pay any dividend or distribute any noncash property or securities in respect of its capital stock, or purchase, redeem or otherwise acquire any shares of its capital stock or other securities; (x) purchase any material assets or securities of any Person or enter into any material joint venture, partnership or other similar arrangement, in each case other than in the Ordinary Course; (xi) terminate, cancel or amend any insurance coverage maintained by any Seller Party or any Acquired Company with respect to the assets or activities of the Acquired Company’s business which is not replaced by an adequate amount of insurance coverage at reasonable cost; (xii) merge or consolidate with or into any other Person or permit any other Person to merge or consolidate with or into it; or (xiii) make, revoke or change any Tax elections, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, waive any statute of limitation in respect of Taxes, agree to any extension of time with respect to a Tax assessment or deficiency, surrender any right to claim a refund, offset or other reduction in Tax liability, settle or compromise any Tax liability, take or omit to take any action which could reasonably be expected to affect the Tax liability of Purchaser, Parent, the Acquired Companies or any of their respective Affiliates for any taxable period ending after the Closing Date, or otherwise take any action outside the ordinary course of business with respect to Tax matters. (c) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct an Acquired Company’s operations prior to the Effective
Appears in 1 contract
1Conduct of Business. (a) From the date hereof through Signature Date until the earlier of Closing, the termination of this Agreement or the Closing Date (the “Pre-Closing Period”), except as permitted by this Agreement or as set forth on Section 6.1(a) to Sellers shall cause the Company Disclosure Letter, the Acquired Companies shallto, and the Seller Parties shall cause the Acquired Companies toCompany shall, conduct their respective businesses only the MAA Business and related operations in the Ordinary Courseordinary course of business consistent with past practice and use all commercially reasonable endeavours to (1) preserve intact its present business organisation, (2) maintain all Consents in effect, (3) keep available the services of its Key Employees, (4) maintain good relationships with its customers, lenders and others having material business relationships with it, and (5) manage its working capital in the ordinary course of business. Without limiting the generality of the foregoing, during the Pre-Closing Period, except as permitted by this Agreement or as set forth on in Section 6.1(a) to the Company Disclosure Letter, each Acquired Company shall (i) maintain its existence in good standing, (ii) maintain the general character of its businesses and conduct its businesses in a commercially reasonable manner, (iii) maintain proper business and accounting records relative to its businesses, (iv) use commercially reasonable efforts to preserve relationships with customers, suppliers, investors and insurers, (v) use commercially reasonable efforts to maintain its assets in good condition and repair, ordinary wear and tear excepted, (vi) maintain presently existing insurance coverage with respect to its businesses and (vii) pay its debts, Taxes and other obligations when due.
(b) Without limiting the generality IV.1 of the foregoing, during the Pre-Closing Period, except as permitted by this Agreement or as set forth on Section 6.1(b) to the Company Disclosure Letter, the Acquired Companies Sellers shall not, with respect to the MAA Business, and shall ensure that the Company does not, and the Seller Parties Company shall cause not, from the Acquired Companies not to, without Signature Date until the prior written consent of Parent (not to be unreasonably withheld, delayed or conditioned) do any of the followingClosing Date:
(i) enter into any Company Material Agreement or terminate or amend or modify in any material respect any existing Company Material Agreement its Organisational Documents other than in the Ordinary Courseas contemplated under this Agreement;
(ii) (a) enter intosplit, adopt, contribute to, combine or become obligated to contribute to, reclassify any Employee Benefit Plan or any Share Capital of the Company other benefit plan, policy, program, arrangement or agreement of any kind, or (b) enter into any collective bargaining agreement or other similar agreement, (c) grant to any of their current or former employees, officers, directors, independent contractors or consultants with total compensation in the prior year in excess of $200,000 per year any increase in compensation, (d) cause or institute any plant closing or mass layoff than as defined by WARN, (e) act to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant of any Acquired Company, or (f) hire, promote or terminate the employment of any current or former officer, manager or employee of any Acquired Company that had or would reasonably would be expected to have total compensation in excess of $200,000 per yearcontemplated under this Agreement;
(iii) sell, transfer, assign or otherwise dispose of or encumber any of its assets in one transaction or a series of related transactions having a value in excess of $100,000 except in the Ordinary Course;
(iv) cancel any debt owed to an Acquired Company or, other than in the Ordinary Course, waive or compromise any claim or right in one transaction or a series of related transactions;
(v) make any capital expenditure or commitment relating to its businesses in excess of $50,000 individually, or $250,000 in the aggregate, other than expenditures necessary to maintain in good repair existing assets;
(vi) except in the Ordinary Course with respect to the Warehouse Lines, incur, assume or guarantee any Indebtedness other than Indebtedness that will be repaid at or prior to the Closing Date;
(vii) amend or modify in any manner the Assumed Indebtedness;
(viii) other than in the Ordinary Course, issue, sell or agree to issue or sell (a) any shares of the equity securities of any Acquired Company or (b) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any equity securities of any Acquired Company;
(ix) other than in the Ordinary Course, declare, set aside or pay any dividend or distribute any noncash other distribution (whether in cash, shares or property or securities any combination thereof) in respect of its capital stockthe Share Capital of the Company;
(iv) redeem, or purchase, redeem repurchase or otherwise acquire any shares Share Capital of its the Company;
(v) issue, deliver or sell any Share Capital of the Company other than as contemplated under this Agreement;
(vi) acquire (by merger, consolidation or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses other than purchases of assets in the ordinary course of business;
(vii) sell, lease or otherwise transfer, or create or incur any Encumbrance on, any Assets, of the Company or the MAA Business, other than sales or dispositions in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any Company Intellectual Property, or enter into any material Contract, or take any action, with respect to any Company Intellectual Property outside the ordinary course of business consistent with past practice, or do any act or knowingly omit to do any act whereby any material Company Intellectual Property may become invalidated, abandoned, unmaintained, unenforceable or dedicated to the public domain;
(ix) make any Loans, advances or capital stock contributions to, or other securitiesinvestments in, any subsidiaries;
(x) purchase any material assets increase compensation or securities fringe benefits of any Person current or former director, officer, employee or consultant of the Company, other than as may be required by Law or existing Contract;
(xi) grant or increase any severance, retention or similar payments to any current or former director, officer, employee or consultant of the Company, other than as may be required by Law or existing Contract;
(xii) enter into any Contract that limits or otherwise restricts in any material joint venturerespect the MAA Business or the Company or that would reasonably be expected, partnership after the Closing Date, to limit or other similar arrangementrestrict in any material respect the MAA Business, the Company, or the Purchasers from engaging or competing in any line of business, in any location or with any Person;
(xiii) enter into, amend or modify in any respect or terminate any Material Contract or IP License, in each case other than in the Ordinary Courseordinary course of business consistent with past practice, or otherwise waive, release or assign any material rights, claims or benefits of the MAA Business or the Company;
(xixiv) terminatechange any methods of accounting, cancel or amend any insurance coverage maintained except as required by any Seller Party or any Acquired Company with respect changes in Indian GAAP as agreed to the assets or activities of the Acquired Company’s business which is not replaced by an adequate amount of insurance coverage at reasonable costits auditors;
(xiixv) merge file for bankruptcy or consolidate with reorganisation or into dissolve or be liquidated;
(xvi) amend or cancel any insurance policies where the consequence of such amendment or cancellation will be detrimental to the Company or MAA Business;
(xvii) settle (A) any Action involving or against the MAA Business, the Company or (if the settlement could have any impact on the Company or the MAA Business) the Sellers, as the case may be, in each case other Person than the settlement of immaterial Actions in the ordinary course of business, or permit (B) any other Person Action that relates to merge or consolidate with or into itthe Contemplated Transactions; or
(xiiixviii) makeagree, revoke commit or change offer to do any Tax electionsof the foregoing.
(b) From the Signature Date until the Closing, adopt the Sellers shall promptly supplement or change any Tax accounting method, enter into any closing agreement amend the information given in this Agreement with respect to Taxesany matter which may arise hereafter and which, waive any statute of limitation in respect of Taxes, agree if existing or occurring at or prior to any extension of time with respect to a Tax assessment or deficiency, surrender any right to claim a refund, offset or other reduction in Tax liability, settle or compromise any Tax liability, take or omit to take any action which could reasonably be expected to affect the Tax liability of Purchaser, Parent, the Acquired Companies or any of their respective Affiliates for any taxable period ending after the Closing Date, would have been required to be set forth or otherwise take described in this Agreement or which makes it necessary to correct any action outside information in this Agreement or in any representation or warranty of the ordinary course of business with respect to Tax mattersSellers and/or the Company, which may be rendered inaccurate thereby.
(c) Nothing contained in this Agreement shall give Parent, directly or indirectlyFrom the Signature Date until the Closing, the right Sellers shall confer with the Purchasers concerning all matters of a material nature relating to control or direct an Acquired Company’s operations prior likely to affect the Effective Company or MAA Business.
Appears in 1 contract
1Conduct of Business. (a) From Except for (i) matters set forth in Section 6.1(a) of the date hereof through Seller Schedule, (ii) as consented to in writing by Purchaser, (iii) as required by applicable Law or (iv) otherwise contemplated by the terms of this Agreement or any Ancillary Agreement, from the Execution Date to the Closing Date or the earlier of the termination of this Agreement or the Closing Date in accordance with Article VIII (the “Pre-Closing Period”), the Seller shall, and shall cause the Selling Affiliates to:
(i) conduct the Business in the ordinary course in a manner consistent with past practice (provided, that no action taken or not taken by the Seller or any Selling Affiliate in order to comply with clause (v) below shall be deemed a breach of this clause (i));
(ii) use commercially reasonable efforts to (A) preserve substantially intact its present business operations and organization in each case relating to the Business, (B) retain the services of the Business Employees set forth on Section 1.1(a) of the Seller Schedule and (C) preserve the goodwill of its present relationships with Persons having material business dealings with Seller (including customers and suppliers) in connection with the Business;
(iii) maintain (A) the Purchased Assets in their current condition, ordinary wear and tear, casualty and condemnation excepted, and (B) insurance upon all of the Purchased Assets in such amounts and of such kinds comparable to that in effect on the Execution Date;
(iv) pay all maintenance and similar fees and take all appropriate actions necessary to prevent the abandonment, loss or impairment of all Purchased Intellectual Property; and
(v) not take any of the following actions with respect to the Business:
(A) sell, transfer, lease, license, permit to lapse or otherwise dispose of any material Purchased Assets except, in each case, for sale of inventory in the ordinary course of business consistent with past practice;
(B) mortgage, pledge or otherwise encumber any Purchased Assets, except in the ordinary course of business consistent with past practice or for mortgages, pledges or encumbrances which will be released at or prior to the Closing;
(C) terminate any Material Contract (other than at the end of the term of such Material Contract in accordance with its terms), make any material amendment or modification to or waive any material right under any Material Contract, or enter into any Contract that, if entered into prior to the date hereof, would constitute a Material Contract other than customer contracts entered into in the ordinary course of business relating to the sale of Products;
(D) enter into any agreement or arrangement which would limit or restrict the distribution or sale of any Subject Product in any material respect following the Closing;
(E) accelerate the delivery or sale of the Product or any services provided by Seller or any Seller Affiliate in respect of the Business, or offer discounts, rebates or special promotions on the Product products or such services that have the effect of accelerating sales to customers or delay the payment of suppliers beyond the respective payment date, in each case, to the extent such activities would be outside the ordinary course of business consistent with past practice;
(F) except as permitted required by this Agreement applicable Law or any Business Benefit Plan as in existence on the date hereof and made available to Purchaser prior to the date hereof (1) grant any loan to, or increase the compensation or benefits payable or to become payable to any Business Employee, other than increases to base salary or wage rate in the ordinary course of business consistent with past practice, of the applicable Business Employee’s base salary or annualized wage rate; (2) grant or increase any severance or termination pay for any Business Employee; (3) pay or award, or commit to pay or award, any bonuses, retention or incentive compensation to any Business Employee other than (i) payments in the ordinary course of business pursuant to past practice based on actual performance for completed performance periods, (ii) the bonuses contemplated by Section 6.11(e) and (iii) as set forth on Section 6.1(a6.1(a)(v) of the Seller Schedule; (4) take any action to accelerate the time of payment, vesting or funding of any compensation or benefits to any Business Employee or (5) except as set forth on Section 6.1(a)(v) of the Seller Schedule, establish, adopt, enter into, amend, modify or terminate any Business Benefit Plan with respect to any Business Employee, except for any broad-based amendments or modifications to any Business Benefit Plan made in the ordinary course of business consistent with past practice that apply to employees of the Seller and Seller Affiliates generally;
(G) (1) terminate (without cause), furlough or layoff (including temporarily) any Business Employee; (2) except as set forth on Section 6.1(a)(v) of the Seller Schedule, hire or transfer any employee to a sales, marketing, quality assurance, manufacturing or regulatory affairs role that is primarily or exclusively dedicated to the Company Disclosure LetterBusiness; (3) materially change the role or responsibilities of any Business Employee, including the Acquired Companies shallpercentage of time such Business Employee spends dedicated to the Business;
(H) take any action or make any omission that may undermine, and restrict or limit in any way the Seller Parties shall cause validity or scope of any Purchased Regulatory Approval;
(I) grant to any Person any license, sublicense, covenant not to sue, immunity authorization, release or other right with respect to any Purchased Intellectual Property, or assign or transfer to any Person any rights to any Purchased Intellectual Property;
(J) Commence any Action relating to the Acquired Companies toProduct or the Business, conduct their respective businesses only except with respect to matters arising under or in connection with this Agreement or the Ordinary Course. Without limiting the generality Ancillary Agreements;
(K) adopt a plan or agreement of complete or partial liquidation or dissolution; or
(L) agree or commit to do any of the foregoing, during .
(b) During the Pre-Closing Period, except Seller shall provide Purchaser with written notice as permitted by this Agreement or soon as set forth on Section 6.1(a) practicable upon any of the following, if related to the Company Disclosure Letter, each Acquired Company shall Product: (i) maintain its existence the initiation or receipt of any Notice and any adverse inspectional findings or Notices, in good standing, each case alleging material non-compliance with any Law (including Regulatory Laws); (ii) maintain the general character of its businesses and conduct its businesses in a commercially reasonable manner, any material adverse audit findings or complaints; (iii) maintain proper business any material quality, safety, efficacy, or performance issues or corrective, preventive, or remedial actions, including recalls; and accounting records relative to its businesses, (iv) use commercially reasonable efforts to preserve relationships with customers, suppliers, investors and insurers, (v) use commercially reasonable efforts to maintain its assets in good condition and repair, ordinary wear and tear excepted, (vi) maintain presently existing insurance coverage with respect to its businesses and (vii) pay its debts, Taxes and other obligations when dueknowledge of any Action pending or threatened against the Seller or any of the Selling Affiliates or their respective assets.
(bc) Without limiting the generality of the foregoing, during During the Pre-Closing PeriodPeriod and for a period ending six months after the Closing, except as permitted Seller shall provide Purchaser with prompt written notice upon receipt by this Agreement it or as set forth on Section 6.1(b) to the Company Disclosure Letter, the Acquired Companies shall not, and the Seller Parties shall cause the Acquired Companies not to, without the prior written consent of Parent (not to be unreasonably withheld, delayed or conditioned) do any of the following:
(i) enter into any Company Material Agreement or terminate or amend or modify in any material respect any existing Company Material Agreement other than in the Ordinary Course;
(ii) (a) enter into, adopt, contribute to, or become obligated to contribute to, any Employee Benefit Plan or any other benefit plan, policy, program, arrangement or agreement of any kind, or (b) enter into any collective bargaining agreement or other similar agreement, (c) grant to any of their current or former employees, officers, directors, independent contractors or consultants with total compensation in the prior year in excess of $200,000 per year any increase in compensation, (d) cause or institute any plant closing or mass layoff as defined by WARN, (e) act to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant of any Acquired Company, or (f) hire, promote or terminate the employment of any current or former officer, manager or employee of any Acquired Company that had or would reasonably would be expected to have total compensation in excess of $200,000 per year;
(iii) sell, transfer, assign or otherwise dispose of or encumber any of its assets in one transaction or Affiliates of notice of an Abbreviated New Drug Application (ANDA) filing of a series of related transactions having a value in excess of $100,000 except in the Ordinary Course;
(iv) cancel any debt owed to an Acquired Company or, other than in the Ordinary Course, waive or compromise any claim or right in one transaction or a series of related transactions;
(v) make any capital expenditure or commitment relating to its businesses in excess of $50,000 individually, or $250,000 in the aggregate, other than expenditures necessary to maintain in good repair existing assets;
(vi) except in the Ordinary Course with respect to the Warehouse Lines, incur, assume or guarantee any Indebtedness other than Indebtedness that will be repaid at or prior to the Closing Date;
(vii) amend or modify in any manner the Assumed Indebtedness;
(viii) other than in the Ordinary Course, issue, sell or agree to issue or sell (a) any shares Generic Version of the equity securities of any Acquired Company or (b) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any equity securities of any Acquired Company;
(ix) other than in the Ordinary Course, declare, set aside or pay any dividend or distribute any noncash property or securities in respect of its capital stock, or purchase, redeem or otherwise acquire any shares of its capital stock or other securities;
(x) purchase any material assets or securities of any Person or enter into any material joint venture, partnership or other similar arrangement, in each case other than in the Ordinary Course;
(xi) terminate, cancel or amend any insurance coverage maintained by any Seller Party or any Acquired Company with respect to the assets or activities of the Acquired Company’s business which is not replaced by an adequate amount of insurance coverage at reasonable cost;
(xii) merge or consolidate with or into any other Person or permit any other Person to merge or consolidate with or into it; or
(xiii) make, revoke or change any Tax elections, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, waive any statute of limitation in respect of Taxes, agree to any extension of time with respect to a Tax assessment or deficiency, surrender any right to claim a refund, offset or other reduction in Tax liability, settle or compromise any Tax liability, take or omit to take any action which could reasonably be expected to affect the Tax liability of Purchaser, Parent, the Acquired Companies or any of their respective Affiliates for any taxable period ending after the Closing Date, or otherwise take any action outside the ordinary course of business with respect to Tax mattersProduct.
(cd) Nothing contained in this Agreement shall is intended to give ParentPurchaser or its Affiliates, directly or indirectly, the right to control or direct an Acquired Company’s operations the Business prior to the Effective Closing. Prior to the Closing, the Seller and its Affiliates shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their businesses and operations.
Appears in 1 contract
1Conduct of Business. (a) From the date hereof through the earlier of the termination of this Agreement or until the Closing Date (the “Pre-Closing Period”)Date, except as permitted by this Agreement or as set forth on Section 6.1(a) to the Company Disclosure Letter, the Acquired Companies Seller shall, and the Seller Parties shall cause the Acquired Companies its Affiliates to, (A) maintain and preserve in all respects the Purchased Assets, (B) conduct their respective businesses only activities with respect to the Business in the Ordinary Course. Without ordinary course of business consistent with past practice and (C) comply in all material respects with all Laws and Permits applicable to the Business.
(b) Except as otherwise required by Law, without limiting the generality of the foregoing, during from the Pre-Closing Period, except as permitted by date of this Agreement or as set forth on Section 6.1(a) to until the Company Disclosure LetterClosing Date, each Acquired Company shall (i) maintain its existence in good standing, (ii) maintain the general character of its businesses and conduct its businesses in a commercially reasonable manner, (iii) maintain proper business and accounting records relative to its businesses, (iv) use commercially reasonable efforts to preserve relationships with customers, suppliers, investors and insurers, (v) use commercially reasonable efforts to maintain its assets in good condition and repair, ordinary wear and tear excepted, (vi) maintain presently existing insurance coverage with respect to its businesses and (vii) pay its debts, Taxes and other obligations when due.
(b) Without limiting the generality of the foregoing, during the Pre-Closing Period, except as permitted by this Agreement or as set forth on Section 6.1(b) to the Company Disclosure Letter, the Acquired Companies Seller shall not, and the Seller Parties shall cause the Acquired Companies its Affiliates not to, to (without the prior written consent of Parent (not to be unreasonably withheld, delayed or conditioned) do any of the following:Buyer):
(i) enter into (A) incur, create, assume or permit the incurrence, creation or assumption of any Company Material Agreement or terminate or amend or modify in any material respect any existing Company Material Agreement Lien (other than Permitted Liens) with respect to the Purchased Assets, (B) dispose of any of the Purchased Assets, other than Inventory in the Ordinary Courseordinary course of business;
(ii) (a) enter into, adopt, contribute tocompromise or settle any Action if the terms of such compromise or settlement would be binding on Buyer or any of its Affiliates, or become obligated to contribute toany Purchased Assets, any Employee Benefit Plan or any other benefit plan, policy, program, arrangement or agreement of any kind, or (b) enter into any collective bargaining agreement or other similar agreement, (c) grant to any of their current or former employees, officers, directors, independent contractors or consultants with total compensation in after the prior year in excess of $200,000 per year any increase in compensation, (d) cause or institute any plant closing or mass layoff as defined by WARN, (e) act to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, independent contractor or consultant of any Acquired Company, or (f) hire, promote or terminate the employment of any current or former officer, manager or employee of any Acquired Company that had or would reasonably would be expected to have total compensation in excess of $200,000 per yearClosing;
(iii) sellother than to the extent necessary to change the name of the Seller in accordance with Section 2.2(a)(ii), transfer(A) terminate, assign amend or otherwise dispose of modify, or encumber waive any of its assets material right under, or fail to perform in one transaction all material respects all obligations under, any assumed Contract, Permit or a series of related transactions having a value in excess of $100,000 except in other document or instrument relating to or affecting the Ordinary Course; Business other than the Elusys Merger Agreement or (B) enter into any material Contract, document or instrument relating to or affecting the Business;
(iv) cancel any debt owed to an Acquired Company or, other than in the Ordinary Course, waive or compromise any claim or right in one transaction or a series of related transactions;
(v) make any capital expenditure or commitment extent relating to its businesses in excess of $50,000 individually, or $250,000 in the aggregate, other than expenditures necessary to maintain in good repair existing assets;
Purchased Assets (vi) except in the Ordinary Course including with respect to the Warehouse LinesElusys), incur, assume or guarantee any Indebtedness other than Indebtedness that will be repaid at or prior to the Closing Date;
(viiA) amend or modify in any manner the Assumed Indebtedness;
make (viii) other than in the Ordinary Course, issue, sell or agree to issue or sell (a) any shares of the equity securities of any Acquired Company or (b) any securities convertible into, or options inconsistent with respect to, or warrants to purchase or rights to subscribe for, any equity securities of any Acquired Company;
(ix) other than in the Ordinary Course, declare, set aside or pay any dividend or distribute any noncash property or securities in respect of its capital stock, or purchase, redeem or otherwise acquire any shares of its capital stock or other securities;
(x) purchase any material assets or securities of any Person or enter into any material joint venture, partnership or other similar arrangement, in each case other than in the Ordinary Course;
(xi) terminate, cancel or amend any insurance coverage maintained by any Seller Party or any Acquired Company with respect to the assets or activities of the Acquired Company’s business which is not replaced by an adequate amount of insurance coverage at reasonable cost;
(xii) merge or consolidate with or into any other Person or permit any other Person to merge or consolidate with or into it; or
(xiii) makepast practices), revoke or change any Tax electionselection, (B) adopt or change any Tax accounting methodmethod or period, (C) file any amended Tax Return, (D) enter into any closing agreement or settlement with respect to Taxes, waive (E) settle any statute of limitation in respect of Tax claim or assessment for Taxes, agree (F) consent to any extension or waiver of time with respect the statute of limitations period applicable to a any Tax claim or assessment or deficiency, (G) surrender any right to claim a refundrefund of Taxes;
(v) fail to maintain true, offset accurate and complete Books and Records and Docket Files;
(vi) fail to keep in force and effect insurance in respect of the Purchased Assets comparable in amount and scope of coverage to that maintained as of the date of this Agreement; or
(vii) agree to or other reduction authorize, or commit to agree to or authorize, in Tax liabilitywriting or otherwise, settle or compromise any Tax liability, take or omit to take any action which could reasonably be expected to affect that would conflict with the Tax liability of Purchaser, Parent, the Acquired Companies or any of their respective Affiliates for any taxable period ending after the Closing Date, or otherwise take any action outside the ordinary course of business with respect to Tax mattersobligations set forth in clauses (i) through (vi) above.
(c) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct an Acquired Company’s operations prior to the Effective
Appears in 1 contract
Samples: Asset and Equity Interests Purchase Agreement (NightHawk Biosciences, Inc.)
