CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time. 7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to: (a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices; (b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii); (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement; (f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations; (g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction; (h) comply in all material respects with all applicable Laws; (i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices; (j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices; (k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and (l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices. 7.1.2 [Reserved] 7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Centerprise Advisors Inc), Merger Agreement (Centerprise Advisors Inc)
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective TimeAcquisition.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on by Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Centerprise Advisors Inc), Merger Agreement (Centerprise Advisors Inc)
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Companies Prior to the Effective Time.
7.1.1 Except as otherwise contemplated by this AgreementAgreement and Schedule 7.1, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, each of the Company Companies shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business its businesses in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or practices, (B) borrowings to refinance existing indebtedness on commercially reasonable terms, or (C) liability related to placing insurance with insurance companies and collecting premiums therefor in the ordinary course of business, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiarysuch Company, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practicesassets;
(k) maintain with financially responsible insurance companies the insurance on its tangible assets and its businesses described in such amounts and against such risks and losses in Section 4.20 herein;
(l) except as may be permitted by Section 7.1.1(b), maintain a manner level of working capital consistent with historic levels and past customs and practices in all material respectspractices; and
(lm) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company Companies shall not take, or permit any Company Subsidiary to take, take any action that would or is reasonably likely to result in any of the representations or warranties of the Company Companies set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective Time.Acquisition. ----------------------------------------------------------
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in ------------ any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]Prior to the Closing, the Partners shall have (a) formed a separate Person ("ATTEST ENTITY") pursuant to Organizational Documents reasonably acceptable in form and substance to CenterPoint and (b) used their diligent efforts to have secured, or have caused the Attest Entity to have secured, all licenses, permits, approvals and authorizations necessary to conduct the Attestation Practice in accordance with applicable laws and regulations.
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Partners, Seller or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Partners, Seller and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than --------- Section 10.1(i)) not being satisfied. ---------------
7.1.4 Prior to the Closing, (i) the Company and/or the Partners, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Partner or former stockholder of the Company, or an Affiliate or family member of a Partner or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.4(i), but excluding (A) debt reflected on ----------------- Schedule 2.1 as Debt Assumed By CenterPoint, (B) items reflected on ------------ Schedule 2.5, (C) to the extent such agreements and obligations result in ------------ Indirect Costs under the Incentive Compensation Agreement, (D) the agreements set forth on Schedule 7.1.4(i)-D and (E) items approved by ------------------- CenterPoint in writing, (ii) the Company shall transfer or distribute to the Persons set forth on Schedule 7.1.4(ii), and such Persons shall assume, ------------------ (A) all assets identified on Schedule 7.1.4(ii) (collectively, the ------------------ "Excluded Assets") and (B) any and all liabilities and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets and the Company's interest in Better Business Methods, L.L.C., a Missouri limited liability company ("BBM"), which was transferred by the Company to Seller effective as of January 1, 1999 (collectively, the "EXCLUDED LIABILITIES"), and (iii) the Company may declare a special bonus (the "Special Bonus") in an amount (after adding all Taxes payable by the Company with respect thereto) not in excess of that portion of the AR that is not necessary to meet the Target or otherwise satisfy the obligations of the Company or the Partners hereunder. Prior to the Closing, the Company and the Partners shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations of the assignee), including without limitation the obligation to make loans to BBM, contained in Section 2.d.i. of that certain Operating Agreement dated August 3, 1998, by and among the Company, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx (the "BBM AGREEMENT"), and the restriction on competition, contained in Section 6.g. of the BBM Agreement and provide copies thereof to CenterPoint.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective TimeAcquisition.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on by Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than Section 10.1(i)) not being satisfied.
7.1.4 Prior to the Closing, (i) the Company shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a present or former stockholder of the Company, or an Affiliate or family member of a Member or present or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.4(i), but excluding (A) debt reflected on Schedule 2.1 as Debt Assumed By Centerprise, (B) items reflected on Schedule 2.6, (C) agreements and obligations to the extent such agreements and obligations result in Indirect Costs under the Incentive Compensation Agreement, (D) that certain Second Amended and Restated Shareholders' and Non-Shareholder Officers' Agreement dated as of December 31, 1998, a true and complete copy of which has been delivered to Centerprise (the "Company Shareholders' Agreement"), and which Company Shareholders' Agreement shall not be amended further, and (E) items approved by Centerprise in writing; and (ii) notwithstanding anything contained in this Section 7.1 to the contrary, the Company will transfer and distribute the assets listed on Schedule 7.1.4(ii) (the "Excluded Assets") to the Persons listed on Schedule 7.1.4(ii), subject to all liabilities and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets (collectively, the "Excluded Liabilities"); provided, however, that prior to the Closing, the Company shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations, of the assignee), and provide copies thereof to Centerprise.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 VII.1 Conduct of Business by the Seller and the Company Prior to Pending the Effective Time.------------------------------------------------------------- Acquisition. -----------
7.1.1 VII.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company Seller shall, and shall cause the Company and each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock equity ownership or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect and (Cc) as set forth on Schedule 7.1.4(ii);7.5; ------------
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares membership interests of, or any options, warrants or rights of any kind to acquire any shares of, of its capital stock membership interests or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stockmembership interests, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on by Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Seller, the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii)7.5, not sell, lease, ------------ license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time.. --------------------------------------------------------------
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect Effect, and (C) as set forth on Schedule 7.1.4(ii);; ---------
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in ------------ any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;; and
(j) other than as set forth on Schedule 7.1.4(ii7.1.4 (ii), not sell, ------------------ lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practicespractices in all material respects;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Seller and the Company Prior to the Effective Time.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, the Company Seller shall, and shall cause the Company and each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock equity ownership or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)7.5;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares membership interests of, or any options, warrants or rights of any kind to acquire any shares of, of its capital stock membership interests or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stockmembership interests, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii)7.5, not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, neither the Seller nor the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company Seller set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time.. --------------------------------------------------------------
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule -------- 7.1.4(ii);; ---------
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in ------------ any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, ------------------ lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]Prior to the Closing, the Stockholders shall have (a) formed a separate Person ("ATTEST ENTITY") pursuant to Organizational Documents reasonably acceptable in form and substance to CenterPoint and (b) used its diligent efforts to have secured, or have caused the Attest Entity to have secured, all licenses, permits, approvals and authorizations necessary to conduct the Attestation Practice in accordance with applicable laws and regulations.
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Stockholders or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Stockholders and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than Section 10.1(i)) not being --------- --------------- satisfied.
7.1.4 Prior to the Closing, (i) the Company and/or the Stockholders, as applicable, shall terminate without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Stockholder or former stockholder of the Company, or an Affiliate or family member of a Stockholder or former stockholder of the Company, including, without limitation, those set forth on Schedule 7.1.4(i), but ----------------- excluding (A) debt reflected on Schedule 2.1 as Debt Assumed by CenterPoint, (B) ------------ items reflected on Schedule 2.5, (C) to the extent such agreements and ------------ obligations result in Indirect Costs under the Incentive Compensation Agreement, and (D) items approved by CenterPoint in writing, and (ii) notwithstanding anything contained in this Section 7.1 to the contrary, the Company will ----------- transfer and distribute the assets listed on Schedule 7.1.4(ii) including, ------------------ without limitation, any AR not necessary to meet the Target or otherwise satisfy the obligations of the Company or the Stockholders hereunder (the "EXCLUDED ASSETS") to the Persons listed on Schedule 7.1.4(ii), subject to all liabilities ------------------ and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets (collectively, the "EXCLUDED LIABILITIES"); provided, however, that prior to the Closing, the Company and the Stockholders -------- ------- shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations of the assignee), and provide copies thereof to CenterPoint.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time.. --------------------------------------------------------------
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects respects, conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect Effect, and (C) as set forth on Schedule 7.1.4(ii7.1.3(ii);; ------------------
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, owners (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, ------------------ lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, business consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Stockholders or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Stockholders and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than --------- Section 10.1(i)) not being satisfied. --------------- ---
7.1.3 Prior to the Closing, (i) the Company and/or the Stockholders, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Stockholder or former stockholder of the Company, or an Affiliate or family member of a Stockholder or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.3(i), but excluding (A) agreements as set forth on Schedule ----------------- -------- 7.
(i) (A) and (B) items approved by CenterPoint in writing; and (ii) ----------- notwithstanding anything contained in this Section 7.1 to the contrary, the ----------- Company may, at its sole option, transfer and distribute the assets listed on Schedule 7.1.3(ii) including, without ------------------ limitation, any cash or AR not necessary to meet the Target or otherwise satisfy the obligations of the Company or the Stockholders hereunder (the "EXCLUDED ASSETS") to the Persons listed on Schedule 7.1.3(ii), subject to ------------------ all liabilities and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets (collectively, the "EXCLUDED LIABILITIES"); provided, however, that prior to the Closing, -------- ------- the Company and the Stockholders shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations of the assignee), and provide copies thereof to CenterPoint.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 VII.1 Conduct of Business by the Company Companies Prior to the Effective Time.. ----------------------------------------------------------------
7.1.1 VII.1 Except as otherwise contemplated by this AgreementAgreement and Schedule 7.1, after the date hereof and prior to the Closing Date or earlier ------------ termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, each of the Company Companies shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business its businesses in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or practices, (B) borrowings to refinance existing indebtedness on commercially reasonable terms, or (C) liability related to placing insurance with insurance companies and collecting premiums therefor in the ordinary course of business, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiarysuch Company, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practicesassets;
(k) maintain with financially responsible insurance companies the insurance on its tangible assets and its businesses described in such amounts and against such risks and losses in Section 4.20 herein; ------------
(l) except as may be permitted by Section 7.1.1(b), maintain a manner level ---------------- of working capital consistent with historic levels and past customs and practices in all material respectspractices; and
(lm) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business its businesses in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the ConversionDocuments, (ii) split, combine or reclassify its outstanding capital stock or (iii) (subject to the adjustment of the Company's working capital pursuant to Section 7.1(l)) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise otherwise, except dividends or distributions which (A) are consistent with past customs and practices, and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or practices, (B) borrowings to refinance existing indebtedness on commercially reasonable terms, or (C) liability related to placing insurance with insurance companies and collecting premiums therefor in the ordinary course of business, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices; provided that the Company or any Company Subsidiary may enter into discussions and/or negotiations regarding a potential acquisition of or merger with or into (i) Summit Risk Management & Insurance Services, (ii) MGU of the West, (iii) Superior Access Insurance Services, Inc. (SAI), (iv) Xxxxx Xxxxxx & Associates, and/or (v) Innovative Cost Management (ICM) (the entities referred to in items (i) through (v) collectively, the "Targets"); provided further, that the consummation of any such merger or acquisition shall be subject to CenterPoint's consent which may be withheld in its sole and absolute discretion, and that any such discussions and/or negotiations with any Target shall be subject to such Target first entering into a confidentiality agreement restricting the disclosure of the terms or existence of the contemplated transaction, the Merger and the Other Mergers in a form and substance reasonably satisfactory to CenterPoint;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practicesassets;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects;
(l) cash, to the extent the cash allocated to the payment of the obligations of the Company and the Stockholders set forth on Schedule 2.1.7 exceeds the amounts actually required to satisfy those obligations. For purposes of the preceding sentence, such obligations shall be deemed to be "satisfied" only upon either:
(i) the delivery to CenterPoint of notice reflecting payment in full and release of such obligations, the form of such notice to the satisfaction of CenterPoint, or (ii) transfer to CenterPoint of cash in an amount equal to the obligation assumed by CenterPoint on the Closing Date; and
(lm) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Stockholders or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Stockholders and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than Section 10.1(i)) not being satisfied.
7.1.3 At or prior to the Closing, the Company and/or the Stockholders, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Stockholder or former stockholder of the Company, or an Affiliate or family member of a Stockholder or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.3, but excluding matters shown as excluded on Schedule 7.1.3 and (B) items approved by CenterPoint in writing.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to the Effective Time.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company HCVT and each Partner shall, and shall cause the Company and each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversioncontemplated by Section 7.5 hereof, (ii) split, combine or reclassify ----------- its equity ownership or outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii);-------- 7.5.3; -----
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on by Schedule 4.9, not (i) increase in ------------ any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of HCVT, the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii)7.5.3, not sell, lease, -------------- license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]Prior to the Closing the Sellers shall have (a) formed a separate Person ("ATTEST ENTITY") pursuant to Organizational Documents satisfactory to HCVT and CenterPoint and (b) used its diligent efforts to have secured, or have caused the Attest Entity to have secured, all licenses, permits, approvals and authorizations necessary to conduct the Attestation Practice in accordance with applicable laws and regulations.
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Company Partners, the Sellers, nor HCVT shall not take, or permit the Company or any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company Partners, the Sellers and HCVT set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not (other than (Section --------- 10(i))not being satisfied.
7.1.4 Prior to the Closing, (i) the Company, the Partners and/or the Sellers, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's Interests, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Partner or Seller or former Partner or Seller of the Company, or an Affiliate or family member of a Partner or Seller or former Partner or Seller of the Company, including without limitation those set forth on Schedule 7.1.4, but excluding (A) -------------- debt reflected on Schedule 2.1 as Debt Assumed By CenterPoint, (B) items ------------ reflected on Schedule 2.5, (C) to the extent such agreements and ------------ obligations result in Indirect Costs under the Incentive Compensation Agreement, and (D) items approved by CenterPoint in writing, and (ii) notwithstanding anything contained in this Section 7.1 to the contrary, the ----------- Company will transfer and distribute the Retained Assets listed on Schedule -------- 7.5.3 the ("RETAINED ASSETS") to the Persons listed on Schedule 7.5.3, ----- -------------- subject to all liabilities and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Retained Assets (collectively, the "RETAINED LIABILITIES"); provided, however, that prior -------- ------- to the Closing, the Company and the Sellers shall obtain novations or other releases or agreements discharging the Company from all Retained Liabilities (so that the respective Retained Liabilities will become direct liabilities and obligations of the assignee), and provide copies thereof to CenterPoint.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective Time.Acquisition. ----------------------------------------------------------
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on by Schedule 4.9, not (i) increase in ------------ any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]Prior to the Closing, the Members shall have used their diligent efforts to have secured, or have caused Seller to have secured, all licenses, permits, approvals and authorizations necessary to conduct the Attestation Practice in accordance with applicable laws and regulations.
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Members, Seller or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Members, Seller and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than --------- Section 10.1(i)) not being satisfied.
7.1.4 Prior to the Closing, (i) the Company and/or the Members, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Member or present or former stockholder of the Company, or an Affiliate or family member of a Member or present or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.4(i), but excluding (A) debt reflected on Schedule ----------------- -------- 2.1 as Debt Assumed By CenterPoint, (B) items reflected on Schedule 2.6, --- ------------ (C) to the extent such agreements and obligations result in Indirect Costs under the Incentive Compensation Agreement, (D) that certain Second Amended and Restated Shareholders' and Non-Shareholder Officers' Agreement dated as of December 31, 1998, a true and complete copy of which has been delivered to CenterPoint (the "COMPANY SHAREHOLDERS' AGREEMENT"), and which Company Shareholders' Agreement shall not be amended further, and (E) items approved by CenterPoint in writing; and (ii) notwithstanding anything contained in this Section 7.1 ----------- to the contrary, the Company will transfer and distribute the assets listed on Schedule 7.1.4(ii) (the "EXCLUDED ASSETS") to the Persons listed on ------------------ Schedule 7.1.4(ii), subject to all liabilities and obligations of any ------------------ nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets (collectively, the "EXCLUDED LIABILITIES"); provided, however, that prior to the Closing, the Company and the Members shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations, of the assignee), and provide copies thereof to CenterPoint.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective TimeAcquisition.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect Effect, and (C) as set forth on Schedule 7.1.4(ii);
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), ) not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practicespractices in all material respects.
7.1.2 [Reserved]
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X not being satisfied.
Appears in 1 contract
CERTAIN COVENANTS AND OTHER TERMS. 7.1 Conduct of Business by the Company Prior to Pending the Effective TimeAcquisition.
7.1.1 Except as otherwise contemplated by this Agreement, after the date hereof and prior to the Closing Date or earlier termination of this Agreement, unless Centerprise CenterPoint shall otherwise agree in writing, the Company shall, and shall cause each Company Subsidiary to:
(a) in all material respects conduct the Business in the ordinary and usual course and consistent with past customs and practices;
(b) not (i) amend its Organizational Documents except as necessary to complete the Conversion, (ii) split, combine or reclassify its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise except dividends or distributions which (A) are consistent with past customs and practices, practices and (B) do not result in a Company Material Adverse Effect and (C) as set forth on Schedule 7.1.4(ii)Effect;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of (i) any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or equity interests of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business in a manner consistent with past customs and practices or (B) borrowings to refinance existing indebtedness on commercially reasonable terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or equity interests or any options, warrants or rights to acquire any of its capital stock or equity interests or any security convertible into or exchangeable for its capital stock or equity interests, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business in a manner consistent with past customs and practices (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) use commercially reasonable efforts to (i) preserve intact its business organizations and goodwill, (ii) keep available the services of its present officers and key employees, and (iii) preserve the goodwill and business relationships with clients and others having business relationships with it and not engage in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement;
(f) confer on a regular and frequent basis with one or more representatives of Centerprise CenterPoint to report operational matters of materiality and the general status of ongoing operations;
(g) except as contemplated on Schedule 4.9, not (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its employees, partners, members or owners, except in the ordinary course of business in a manner consistent with past customs and practices of the Company or any Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such Person, whether past or present, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, partners, members or owners, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction;
(h) comply in all material respects with all applicable Laws;
(i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any businesses or any Person or division thereof or otherwise acquire or agree to acquire any assets in each case which are material to it other than in the ordinary course of business in a manner consistent with past customs and practices;
(j) other than as set forth on Schedule 7.1.4(ii), not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business, consistent with past customs and practices;
(k) maintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses in a manner consistent with past customs and practices in all material respects; and
(l) collect and xxxx receivables in the ordinary and usual course and consistent with past custom and practices.
7.1.2 [Reserved]Prior to the Closing, the Members shall have (a) formed a separate Person ("Attest Entity") pursuant to Organizational Documents reasonably acceptable in form and substance to CenterPoint and (b) used their diligent efforts to have secured, or have caused the Attest Entity to have secured, all licenses, permits, approvals and authorizations necessary to conduct the Attestation Practice in accordance with applicable laws and regulations.
7.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article, none of the Members, Seller or the Company shall not take, or permit any Company Subsidiary to take, any action that would or is reasonably likely to result in any of the representations or warranties of the Members, Seller and the Company set forth in this Agreement being untrue or in any of the conditions to the consummation of the transactions contemplated hereunder set forth in Article X (other than Section 10.1(i)) not being satisfied.
7.1.4 Prior to the Closing, (i) the Company and/or the Members, as applicable, shall terminate, without any liability to the Company or the Company Subsidiaries, all agreements relating to the voting of the Company's capital stock, and all agreements and obligations of the Company and the Company Subsidiaries relating to borrowed money and/or involving payments to or for the benefit of a Member or present or former stockholder of the Company, or an Affiliate or family member of a Member or present or former stockholder of the Company, including without limitation those set forth on Schedule 7.1.4(i), but excluding (A) debt reflected on Schedule 2.1 as Debt Assumed By CenterPoint, (B) items reflected on Schedule 2.5, (C) to the extent such agreements and obligations result in Indirect Costs under the Incentive Compensation Agreement, (D) that certain lease agreement dated July 11, 1996, by and between the Company and BDM&P, Limited Liability Company, and (E) items approved by CenterPoint in writing; and (ii) notwithstanding anything contained in this Section 7.1 to the contrary, the Company will sell, transfer and distribute the assets listed on Schedule 7.1.4(ii) (the "Excluded Assets"), including, without limitation, any fees and expenses receivable not necessary to meet the Target or otherwise satisfy the obligations of the Company or the Members hereunder, to the Persons listed on Schedule 7.1.4(ii), subject to all liabilities and obligations of any nature (whether known or unknown, accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise) relating to the Excluded Assets (collectively, the "Excluded Liabilities"); provided, however, that prior to the Closing, the Company and the Members shall obtain novations or other releases or agreements discharging the Company from all Excluded Liabilities (so that the respective Excluded Liabilities will become direct liabilities and obligations of the assignee), and provide copies thereof to CenterPoint.
7.1.5 From and after the date hereof, the Company shall use its best efforts to acquire, effective on or before the Closing, all of the outstanding interests in BDM&P Decision Development, LLC which are not owned by the Company, on terms and conditions satisfactory to CenterPoint.
Appears in 1 contract
