Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company to, and the Seller Parties and the Company shall cause each Subsidiary of the Company to: (a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business; (2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset; (3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained; (4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and (5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises. (b) Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, the Company shall not (and the Seller Parties shall cause the Company not to, and the Seller Parties and the Company shall cause each Subsidiary of the Company, not to) take, consent to or allow any of the following actions without the prior written consent of Buyer: (i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) or organize, any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than in the Ordinary Course of Business; (2) amend or otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or its Subsidiaries; (3) sell, divest, transfer or otherwise dispose of any assets, except regular sales of oil and gas sold from out of the ground or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount); (4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, any of the assets of the Company or its Subsidiaries, except in the Ordinary Course of Business; (5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries); (6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests; (7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries; (8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of the Company or any of its Subsidiaries; (9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiaries, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not required by any existing agreement or employee benefit plan, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code; (10) amend, modify, or change in any material respect any Company Contract or Oil and Gas Contract, other than in the Ordinary Course of Business; (11) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; (12) except as required by Law, make or change any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall not be unreasonably withheld or delayed; or (13) agree in writing or otherwise to take any of the actions described in this Section 6.1(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Real Estate Partners L P)
Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writingAgreement, during the period from the date hereof to the ClosingClosing Date, Seller (with respect to the Division) and the Company will conduct their operations in the ordinary course of business consistent with past practice; provided that it is expressly agreed that the Seller (with respect to the Division) or the Company may, at any time and at its sole discretion, repay all or a portion of its outstanding indebtedness. Furthermore, during the period from the date hereof to the Closing Date, neither Seller, the Company shallnor any of their respective Affiliates will, without the Seller Parties shall cause prior written consent of Buyer, sell, transfer, assign or encumber the Company to, and Interests or the Seller Parties and the Company shall cause each Subsidiary of the Company to:
(a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business;
(2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset;
(3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and
(5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises.
(b) Assets. Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the ClosingClosing Date, neither Seller (with respect to the Division) nor the Company shall not (and the Seller Parties shall cause the Company not towill, and the Seller Parties and the Company shall cause each Subsidiary of the Company, not to) take, consent to or allow any of the following actions without the prior written consent of Buyer:
(i) acquire amend the Company Charter Documents;
(by mergerii) issue, consolidationsell or agree or commit to issue (whether through the issuance or granting of options, acquisition of stock or assets warrants, commitments, subscriptions, rights to purchase or otherwise) any membership interests of any class or organizeany other equity securities or equity equivalents of the Company;
(iii) split, combine or reclassify any corporationof the Company’s membership interests or declare, limited liability company, partnership, joint venture, trust set aside or pay any dividends or other entity distributions in respect of the Company’s membership interests;
(iv) redeem, purchase, or person otherwise acquire any of the Company’s membership interests;
(v) incur or assume any business organization or division thereof non-customer related indebtedness for borrowed money except for non-customer related indebtedness for borrowed money not exceeding $75,000 in the aggregate and except for any borrowings under any revolving credit facility currently in place, or (ii) acquire assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any rightsother Person, assets or properties other than except for obligations not exceeding $75,000 in the Ordinary Course of Businessaggregate;
(2vi) except as may be required by law or as contemplated by this Agreement, (i) enter into, adopt or amend or otherwise change terminate any material bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the Governance Documents benefit or welfare of any director, officer or employee of Seller (with respect to the Division) or the Company in any material manner, (ii) except for normal salary increases and bonus payments in the ordinary course of business consistent with past practice, increase in any material manner the compensation of any director, officer or employee of Seller (with respect to the Division) or the Company or (iii) pay any material benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units);
(vii) sell, lease or dispose of or acquire any of the Assets or any assets of the Company outside the ordinary course of business that have a value in the aggregate in excess of $50,000;
(viii) except as may be required by law or as contemplated by this Agreement, alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate capital structure or ownership of the Company or its SubsidiariesCompany;
(3ix) sell, divest, transfer or otherwise dispose effect any change in any of any assetsits methods of accounting, except regular sales of oil and gas sold from out of the ground or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company as may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount)by GAAP;
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, any of the assets of the Company or its Subsidiaries, except in the Ordinary Course of Business;
(5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries);
(6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries;
(8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of the Company or any of its Subsidiaries;
(9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiaries, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not required by any existing agreement or employee benefit plan, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code;
(10x) amend, modify, extend, renew or change terminate any Lease, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property requiring payments in any material respect any Company Contract or Oil and Gas Contract, other than in excess of $10,000 annually as averaged over the Ordinary Course of Businessterm thereof;
(11xi) change agree to do any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer;
(12) except as required by Law, make or change any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall not be unreasonably withheld or delayedforegoing; or
(13xii) agree otherwise engage in writing or otherwise to any practice, take any action, or enter into any transaction of the actions sort described in this Section 6.1(b)2.7.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Heartland Payment Systems Inc)
Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance Each of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company to, and the Seller Parties and the Company shall cause each Subsidiary of the Company to:
(a) Companies will conduct its operations business diligently, in the Ordinary Course of Business ordinary course and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business;
(2) use commercially reasonable efforts consistent with past practice and exclusively through the Companies. Each of the Companies will use all reasonable efforts (without making any commitments on behalf of Purchaser) to preserve its business organization intact, to keep available to Purchaser the present officers and employees of the Companies, to maintain in effect all existing qualifications, franchises, licenses, permits, consents, authorizations and registrations of the Companies with respect to their businesses, and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in preserve for Purchaser the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets present relationships of the Company or any Subsidiary Companies with material suppliers, customers and others having business relations with the Companies. Each of the Companies will conduct its business and operations in excess a manner consistent with the conduct of $100,000 its business operations prior to Closingthe date hereof. Each of the Companies shall continue all practices, policies, procedures and operations relating to consult with Buyer regarding its business in substantially the replacement or repair of such property or asset;
(3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and
(5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises.
(b) same manner as heretofore conducted. Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this AgreementAgreement or with the prior written consent of Purchaser, during the period from the date hereof to the ClosingClosing Date, the Company shall not (and the Seller Parties shall cause the Company not to, and the Seller Parties and the Company shall cause each Subsidiary none of the CompanyCompanies will:
(a) incur any obligations or liabilities (whether absolute, not toaccrued, contingent or otherwise and whether due or to become due), except obligations or liabilities incurred in the ordinary course of business and consistent with past practice, or permit any change in any assumptions underlying or methods of calculating any bad debt, contingency or other reserves;
(b) take, consent to permit or allow any of the following actions without the prior written consent of Buyer:
(i) acquire (by merger, consolidation, acquisition of stock its properties or assets (whether real, personal or otherwisemixed, tangible or intangible) to be mortgaged, pledged or organizesubjected to any lien or encumbrance, any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than in the Ordinary Course of Businessexcept liens for taxes not yet delinquent;
(2c) amend cancel or otherwise change the Governance Documents release any debts or alter through mergerclaims, liquidation, reorganization, restructuring or in waive any other fashion the corporate structure rights of substantial value or ownership of the Company or its Subsidiaries;
(3) sell, divest, transfer or otherwise dispose of any assets, except regular sales of oil and gas sold from out of the ground or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount);
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, convey any of the its properties or assets of the Company (whether real, personal or its Subsidiariesmixed, tangible or intangible), except in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice;
(5d) dispose of or permit to lapse any license, permit or other form of material authorization; or dispose of or disclose to any person, other than to borrow against its existing credit lines for ordinary course working capital purposes employees, consultants and representatives bound by confidentiality obligations or agreements, any trade secret, formula, process or know-how;
(ie) incur or modify except with the prior consent of the Purchaser, grant any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, increase in the obligations compensation of any Person, officer or employee (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations increase pursuant to Seller or any of its Affiliates (including NXXX) bonus (other than year-end bonuses consistent with past practices which each of the Company Companies shall timely pay), pension, profit-sharing or its Subsidiariesother plan or commitment); make any payment under any existing Employee Plan not required under the terms thereof; institute or adopt any new Employee Plan; modify, amend or terminate any existing Employee Plan or extend the term or alter the terms of any employment agreement;
(6f) paymake any capital expenditures or commitments in excess of One Hundred Thousand ($100,000) Dollars in the aggregate for replacements or additions to property, make plant or declare equipment;
(g) declare, pay or make, or set aside for payment or making, any dividends dividend or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) distribution in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of capital stock or encumberother securities, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition directly or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries;
(8) (A) repurchase, indirectly redeem, purchase or otherwise acquire any of its Equity Interests capital stock or any Equity Interests other securities;
(h) issue, authorize or propose the issuance of any Subsidiary; shares of its capital stock or securities convertible into, or rights, warrants or options to acquire, any such shares or other convertible securities;
(Bi) effect delay or defer payment of accounts payable or other obligations of any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company Companies or accelerate collection of accounts receivable or other obligations due the Companies in a manner inconsistent with past practice;
(j) pay, loan or advance any amount to or in respect of, or sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any agreement, arrangement or transaction with, the Shareholder, any of the officers or directors of the Shareholder or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidationthe Companies, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization any Affiliate of the Company Shareholder, the Companies or any of its Subsidiariestheir respective officers or directors, or any business or entity in which the Shareholder or any Affiliate of any such persons has a direct or indirect interest except that the foregoing shall not be construed to prevent the Companies from transferring cash to one another or to the Shareholder or from purchasing goods or services from the Shareholder or any Affiliates in conformity with past practices;
(9k) (A) take any action with respect to the grant of subdivide or increase in any severance or termination pay to way reclassify any current or former director, executive officer or employee of the Company or any shares of its Subsidiariescapital stock;
(l) terminate or voluntarily suffer the termination of any Material Contract except for Material Contracts which are not Assumed Contracts and except for Material Contracts expiring in the ordinary course of business pursuant to their terms and which would not reasonably be expected to have, (B) execute any employmenteither individually or in the aggregate, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such directora Material Adverse Effect on the Companies considered as a whole, executive officer or employee of the Company or any of its Subsidiariesor, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit planrespect, (D) provide any material benefit amend or suffer the amendment of, or fail to a current or former director, executive officer or employee of the Company or any perform all of its Subsidiaries not required by obligations or suffer or permit any existing agreement or employee benefit plandefault to exist under, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the CodeMaterial Contract which is also an Assumed Contract;
(10m) amendenter into or obtain any contract, modifylease, commitment, license, permit or change in any material respect any Company Contract or Oil and Gas Contract, other than in the Ordinary Course of Business;
(11) change any of the accounting principles or practices used by itauthorization, except (i) contracts or commitments for the purchase of services, supplies, inventory or equipment (not to exceed Fifty Thousand ($50,000) Dollars for any change required one purchase contract or commitment unless authorized by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer;
(12) except as required by Law, make or change any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of BuyerPurchaser, which consent authorization shall not be unreasonably withheld or delayed) or the sale of products provided in each case such contract or commitment is entered into in the ordinary course of business and at rates consistent with normal and usual practices, and (ii) other contracts or commitments entered into in the ordinary course of business and consistent with past practice, provided that any such other contract or commitment (x) is terminable by the Companies on not more than ninety (90) days' notice and (y) will not require any of the Companies to expend more than Fifty Thousand ($50,000) Dollars during the term thereof;
(n) enter into any license of any material intellectual property, whether as licensor, licensee, grantor or grantee, except in connection with the sale of products in the ordinary course of business;
(o) fail to take such action as may be reasonably necessary to maintain, preserve, renew and keep in full force and effect the corporate existence, qualifications and franchises of the Companies, or fail to comply with any law applicable to the conduct of the businesses of any of the Companies;
(p) amend the Certificate of Incorporation or By-Laws (or other similar charter documents) of any of the Companies; or
(13q) agree agree, whether in writing or otherwise otherwise, to take any of the actions described action prohibited in this Section 6.1(b)7.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Semx Corp)
Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties PFC shall cause the Company to, and the Seller Parties PFC and the Company shall cause each Subsidiary of the Company to:
(aA) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Businesscompliance with all Applicable Laws;
(2B) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset;
(3C) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a1) keep and maintain accurate books, records and accounts; (b2) pay or accrue all Taxes, assessments and other governmental charges imposed upon any of its assets or properties or with respect to its franchises, businesses, income or assets when due and before any penalty or interest accrues thereon unless, if due and payable, the validity is being contested in good faith by appropriate legal proceedings and adequate reserves have been set aside; (3) pay all claims and expenses (including claims and expenses for labor, services, materials and supplies) when they become due and payable in accordance with their terms unless contested in good faith; (4) pay all wages and other compensation earned by their employees through the Closing Date when they become due and payable in accordance with their obligations under any labor or employment practices and policies, or any collective bargaining agreement or other labor contract or individual agreement to which any may be a party or by which any may be bound or subject; and (5) comply with and enforce the provisions of all Company Contracts and all Oil and Gas Contracts, including paying in the Ordinary Course of Business; (c) pay Business all Indebtedness, payables, rentals, royalties, expenses and other liabilities relating to their business, assets or other properties;
(E) operate in compliance with the Ordinary Course of Businessprocedure and Project Plan and any amendment thereto established pursuant to Section 7.18; and
(5F) use commercially reasonable effort to at all times, preserve and keep in full force and effect their corporate or other legal existence and rights and franchisesexistence.
(b) Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, the Company shall not (and the Seller Parties shall cause the Company not to, and the Seller Parties and the Company shall cause each Subsidiary of the Company, not to) take, consent to or allow any of the following actions without the prior written consent of Buyer:
(i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) or organize, any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than in the Ordinary Course of Business;
(2) amend or otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or its Subsidiaries;
(3) sell, divest, transfer or otherwise dispose of any assets, except regular sales of oil and gas sold from out of the ground or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount);
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, any of the assets of the Company or its Subsidiaries, except in the Ordinary Course of Business;
(5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries);
(6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries;
(8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of the Company or any of its Subsidiaries;
(9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiaries, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not required by any existing agreement or employee benefit plan, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code;
(10) amend, modify, or change in any material respect any Company Contract or Oil and Gas Contract, other than in the Ordinary Course of Business;
(11) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer;
(12) except as required by Law, make or change any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall not be unreasonably withheld or delayed; or
(13) agree in writing or otherwise to take any of the actions described in this Section 6.1(b).
Appears in 1 contract
Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company to, and the Seller Parties and the Company shall cause each Subsidiary of the Company to:
(a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business;
(2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset;
(3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and
(5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises.
(b) Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, Sellers and Oxford (i) shall conduct the Company Business only in the ordinary course consistent with past practice and in compliance with all Applicable Laws; (ii) shall not (and the Seller Parties shall cause the Company not touse their reasonable best efforts to preserve, maintain, and protect the Seller Parties Assets; and (iii) shall use their best efforts to preserve intact the Company shall cause each Subsidiary business organization of the CompanyBusiness, not to) take, consent to or allow any keep available the services of the following actions employees of the Business, and to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, and others having business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Sellers and Oxford shall not, without the prior written consent of Buyer:
(ia) acquire (by merger, consolidation, acquisition of stock transfer or assets sell its equity interests in a Seller or otherwise) or organize, make any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than change in the Ordinary Course ongoing operations of the Assets or the Business;
(2b) amend mortgage or otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in pledge any other fashion the corporate structure or ownership of the Company Assets or its Subsidiariescreate or suffer to exist any Encumbrance thereupon;
(3i) enter into, adopt, or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of the Business; (ii) increase in any manner the compensation or fringe benefits of any employee of the Business; or (iii) pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(d) sell, divestlease, transfer transfer, or otherwise dispose of any assetsof, except regular sales of oil and gas sold from out of the ground directly or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount);
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) onindirectly, any of the assets Assets;
(e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of the Company Business consistent with past practice, or its Subsidiariesin accordance with their terms, except of liabilities reflected or reserved against in the Ordinary Course of Financial Statements;
(f) enter into any lease, contract, agreement, commitment, arrangement, or transaction relating to the Business;
(5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries);
(6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries;
(8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of the Company or any of its Subsidiaries;
(9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiaries, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not required by any existing agreement or employee benefit plan, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code;
(10g) amend, modify, or change in any material respect any Company Contract existing lease, contract, or Oil and Gas Contract, other than in agreement relating to the Ordinary Course of Business;
(11h) waive, release, grant, or transfer any rights of value relating to the Business;
(i) delay payment of any account payable or other liability of Sellers relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(j) permit any current insurance or reinsurance policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers Assets or insures risks, contingencies, or liabilities of the Business;
(k) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by it relating to the Company to BuyerBusiness;
(12l) except take any action which would or might make any of the representations or warranties of Sellers or Oxford contained in this Agreement untrue or inaccurate as required by Law, make or change of any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating time from the date of this Agreement to the Company Closing or would or might result in any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall conditions set forth in this Agreement not be unreasonably withheld or delayedbeing satisfied; or
(13m) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 6.1(b)Section.
Appears in 1 contract
Conduct and Preservation of Business. (a) Except From the date of this Agreement until the Closing Date, other than as expressly provided in specifically contemplated by this Agreement or except as contemplated by with the prior consent of Parent (such consent not to be unreasonably withheld or delayed), (i) the Company and in furtherance the Subsidiary and the business of the Restructuring as described Company and Subsidiary shall be operated in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company toordinary and usual course of business and consistent with past practice, and the Seller Parties and (ii) the Company shall cause each Subsidiary of the Company to:
(a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business;
(2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset;
(3) use commercially reasonable efforts to keep in full force preserve the current relationships of the Company and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a) keep and maintain accurate booksthe Subsidiary with customers, records and accounts; (b) pay or accrue Taxes, assessments suppliers and other governmental charges imposed upon any of its franchises, businesses, income persons with which the Company or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and
(5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchisesSubsidiary has significant business relations.
(b) Without limiting the generality of the foregoing, except the Company and the Subsidiary shall not, other than as specifically contemplated by and in furtherance this Agreement or with the prior consent of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, the Company Parent (which shall not (and the Seller Parties shall cause the Company not to, and the Seller Parties and the Company shall cause each Subsidiary of the Company, not to) take, consent to be unreasonably withheld or allow any of the following actions without the prior written consent of Buyer:delayed),
(i) acquire (by merger, consolidation, acquisition amend their respective certificates of stock incorporation or assets or otherwise) or organize, any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or by-laws;
(ii) acquire any rights, assets or properties other than in the Ordinary Course of Business;
(2) amend or otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or its Subsidiaries;
(3) sell, divestlease, transfer transfer, assign or otherwise dispose of any assets, except regular sales other than the disposition of oil and gas sold from out of the ground or storage tanks or other inventories and supplies inventory in the Ordinary Course ordinary course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business business consistent with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount)past practice;
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, any of the assets of the Company or its Subsidiaries, except in the Ordinary Course of Business;
(5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement agreement preventing or restricting any accounts receivable or payable financing arrangement, or (iv) make business activities in any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries);
(6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest location of the Company or any of its Subsidiariesthe Subsidiary after the Closing Date;
(8) iv) except in the ordinary course of business, sale bonuses to be paid pursuant to Section 2.10(b) and option grants in respect of the 80.43583 Options in treasury, (A1) repurchase, redeemmake any change in employment terms of, or otherwise acquire any of increase the compensation payable or to become payable or the benefits provided to, its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) splitemployees, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalizationdirectors, or other reorganization of the Company or any of its Subsidiaries;
(9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiariesofficers, (B2) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not except as required by any existing agreement or employee benefit planBenefit Plan that has been disclosed in connection herewith, grant any severance or termination pay to, or enter into any employment or severance agreement with, any employee, director or officer, or (E3) take establish, adopt, enter into or amend any action that would result in any bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, program agreement, trust, fund, policy or agreement violating Section 409A arrangement for the benefit of the Code any director, officer, employee, or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A group of the Code;employees; or
(10v) amend, modify, or change in any material respect any Company Contract or Oil and Gas Contract, other than except in the Ordinary Course ordinary course of Business;
(11) business and consistent with past practice, make, change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer;
(12) except as required by Law, make or change revoke any Tax election, change settle or compromise any Tax liability, consent to any claim or assessment relating to an annual accounting periodamount of Taxes or any waiver of the statute of limitations, adopt or change any method of Tax accounting method with respect to Taxesor, file any amended Tax Return, enter into any closing agreement, settle Return or compromise any proceeding with respect to any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a for refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall not be unreasonably withheld or delayed; or
(13) agree in writing or otherwise to take any of the actions described in this Section 6.1(b).
Appears in 1 contract
Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company to, and the Seller Parties and the Company shall cause each Subsidiary of the Company to:
(a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business;
(2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset;
(3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained;
(4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and
(5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises.
(b) Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, Seller and Oxford (i) shall conduct the Company Business only in the ordinary course consistent with past practice and in compliance with all Applicable Laws; (ii) shall not (and the Seller Parties shall cause the Company not touse their reasonable best efforts to preserve, maintain, and protect the Seller Parties Assets; and (iii) shall use their best efforts to preserve intact the Company shall cause each Subsidiary business organization of the CompanyBusiness, not to) take, consent to or allow any keep available the services of the following actions employees of the Business, and to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, and others having business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Seller and Oxford shall not, without the prior written consent of Buyer:
(ia) acquire (by merger, consolidation, acquisition of stock transfer or assets sell its equity interests in Seller or otherwise) or organize, make any corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than change in the Ordinary Course ongoing operations of the Assets or the Business;
(2b) amend mortgage or otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in pledge any other fashion the corporate structure or ownership of the Company Assets or its Subsidiariescreate or suffer to exist any Encumbrance thereupon;
(3c) (i) enter into, adopt, or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of the Business; (ii) increase in any manner the compensation or fringe benefits of any employee of the Business; or (iii) pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof;
(d) sell, divestlease, transfer transfer, or otherwise dispose of any assetsof, except regular sales of oil and gas sold from out of the ground directly or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount);
(4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) onindirectly, any of the assets Assets;
(e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of the Company Business consistent with past practice, or its Subsidiariesin accordance with their terms, except of liabilities reflected or reserved against in the Ordinary Course of Financial Statements;
(f) enter into any lease, contract, agreement, commitment, arrangement, or transaction relating to the Business;
(5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financing commitments, including, without limitation, any financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries);
(6) pay, make or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, 2001) in respect of any of its Equity Interests;
(7) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries;
(8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other reorganization of the Company or any of its Subsidiaries;
(9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any of its Subsidiaries, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any of its Subsidiaries, (C) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to a current or former director, executive officer or employee of the Company or any of its Subsidiaries not required by any existing agreement or employee benefit plan, or (E) take any action that would result in any plan, program or agreement violating Section 409A of the Code or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code;
(10g) amend, modify, or change in any material respect any Company Contract existing lease, contract, or Oil and Gas Contract, other than in agreement relating to the Ordinary Course of Business;
(11h) waive, release, grant, or transfer any rights of value relating to the Business;
(i) delay payment of any account payable or other liability of Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(j) permit any current insurance or reinsurance policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers Assets or insures risks, contingencies, or liabilities of the Business;
(k) change any of the accounting principles or practices used by it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by it relating to the Company to BuyerBusiness;
(12l) except take any action which would or might make any of the representations or warranties of Seller or Oxford contained in this Agreement untrue or inaccurate as required by Law, make or change of any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating time from the date of this Agreement to the Company Closing or would or might result in any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax without the consent of Buyer, which consent shall conditions set forth in this Agreement not be unreasonably withheld or delayedbeing satisfied; or
(13m) authorize or propose, or agree in writing or otherwise to take take, any of the actions described in this Section 6.1(b)Section.
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