Conduct of Business by the Company Pending the Sale. Unless the Purchaser shall otherwise agree in writing, the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law; and the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall not, between the date of this Agreement and the Closing Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Purchaser: (a) amend or otherwise change the Company's Articles or Bylaws; (b) except for the issuance of shares of Company Capital Stock upon the exercise or conversion of currently outstanding Stock Purchase Rights or the issuance of shares of Company Common Stock upon the exercise of Options assumed pursuant to Section 2.4.2(c), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any assets of the Company, except in the ordinary course of business and in a manner consistent with past practice, (ii) any shares of capital stock of any class of the Company, or (iii) any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securities; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof or any material amount of assets; (ii) incur any Debt or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, any obligations of any Person, or make any loans or advances, except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $25,000 for the Company taken as a whole; (v) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate or be subject to termination for convenience within 30 days following execution; (vi) license any Technology or IP Rights; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e); (f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to any of its officers, employees, agents or consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer, employee or consultant of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, Employee Benefit Plan or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) make any Tax election or settle or compromise any Tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (j) 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 in any material respect, or in any covenant of the Company set forth in this Agreement being breached, or in any of the conditions to the Sale specified in Article V hereof not being satisfied; or (k) agree to do any of the foregoing.
Appears in 1 contract
Conduct of Business by the Company Pending the Sale. Unless the Purchaser shall otherwise The Sellers agree in writing, the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law; and the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall notthat, between the date of this Agreement and the Closing DateClosing, directly except as set forth in Section 6.01 of the Disclosure Schedules, as contemplated or indirectly dorequired by any other provision of this Agreement, as required by applicable Law or propose by any Governmental Entity of competent jurisdiction or as reasonably determined by the Sellers, after consultation with the Buyer in good faith, to dobe necessary or advisable in response to any Pandemic Measures or COVID-19 or any similar epidemic, pandemic or public health emergency, unless Buyer shall otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), the Sellers shall, and shall cause the Company and each Company Subsidiary to, use commercially reasonable efforts to conduct the operations of the Company Group in all material respects in the ordinary course of business consistent with past practice. Without limiting the foregoing, except (w) as set forth in Section 6.01 of the Disclosure Schedules, (x) as expressly contemplated or required by any other provision of this Agreement, (y) as required by applicable Law or by any Governmental Entity of competent jurisdiction or (z) as reasonably determined by the Sellers, following consultation with Buyer in good faith, to be necessary or advisable in response to any Pandemic Measures or COVID-19 or any similar epidemic, pandemic or public health emergency, the Sellers shall not permit the Company or any Company Subsidiary (as applicable) to, between the date of this Agreement and the Closing, do any of the following without the prior written consent of the Purchaser:Buyer (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) amend or otherwise change modify the Company's Articles Company Organizational Documents or Bylawsthe certificate of formation or similar organizational documents of any Company Subsidiary;
(b) except for issue or dispose of or authorize the issuance or disposition of shares any equity securities in the Company Group, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of Company Capital Stock upon the exercise any kind to acquire any such equity securities or conversion of currently outstanding Stock Purchase Rights such convertible or the issuance of shares of Company Common Stock upon the exercise of Options assumed pursuant to Section 2.4.2(c), issue, sell, contract to issue or exchangeable securities;
(i) sell, pledge, dispose of, granttransfer, lease, license or encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (iother than Permitted Liens) any material personal property, equipment or assets (other than as set forth in Section 6.01(c)(ii)) of the CompanyCompany Group, except other than (A) in the ordinary course of business consistent with past practice for which the aggregate consideration paid or payable in any individual transaction is not in excess of $1,000,000 or for all such transactions not in excess of $10,000,000 in the aggregate, or (B) pursuant to existing Contracts set forth in Section 6.01(c) of the Disclosure Schedules,
(ii) sell, pledge, dispose of, transfer, lease, license or encumber any real property other than (A) the termination of the Existing Operating Lease and entry into the New Operating Lease in a manner accordance with this Agreement; (B) the execution of easements, rights of way, restrictions and other similar instruments in the ordinary course of business consistent with past practice that, individually or in the aggregate, do not, and would not reasonably be expected to, materially impair the existing use and operation of, the property or asset affected by the applicable instrument, or (C) the execution of Leases in the ordinary course of business consistent with past practice,
(iii) sell, assign, transfer, convey, license, sublicense, covenant not to assert, abandon, allow to lapse, lease or otherwise dispose of any material Owned IP Rights or material Licensed IP Rights, other than in the ordinary course of business consistent with past practice, or
(iiiv) (A) amend or terminate any shares of capital stock of any class of the CompanyMaterial Contracts or waive any material rights or claims thereunder, or (iiiB) enter into any optionsContract that, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) if in effect of the Company;
(c) declaredate hereof, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any of its capital stockwould constitute a Material Contact;
(d) other than in the case of wholly-owned Company Subsidiaries, reclassify, combine, split, subdividesubdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock equity securities or any options, warrants, securities or other rights exercisable for or convertible into any such equity securities;
(ie) acquire (including, without limitation, by merger, consolidation, merge or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof consolidate the Company or any material amount Company Subsidiary with any person or adopt a plan of assets; complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (iiother than a merger of one or more wholly-owned Company Subsidiaries with or into one or more other wholly-owned Company Subsidiaries);
(f) incur any Debt financial indebtedness for borrowed money from third party lending sources (other than current trade accounts payable incurred in respect of property or services purchased in the ordinary course of business consistent with past practice and letters of credit issued in the ordinary course of business consistent with past practice) or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, any the obligations of any Person, or make any loans or advancesadvances (other than, except in each case, in the ordinary course of business and consistent with past practice; , including, for clarity, in respect of gambling markers), for, in each case, individual amounts in excess of $1,000,000 or in the aggregate in excess of $5,000,000 (iiior, in the case of loans or advances to Affiliates, for amounts in the aggregate in excess of $5,000,000);
(g) enter into acquire (including by merger, consolidation or acquisition of stock or assets) any contract interest in any person (or agreement equity interests thereof) or any assets, real property, personal property, equipment, business or other rights (whether by merger, stock purchase, asset purchase or otherwise), other than (i) acquisitions of inventory, personal property, equipment and vehicles in the ordinary course of business, consistent with past practice; , or (ivii) authorize any single capital expenditure which other acquisitions of assets or businesses for consideration that is individually or in the aggregate not in excess of $10,000 5,000,000;
(h) except in each case to the extent required by Law, file any material Tax Return inconsistent with past practice, make or capital expenditures which arechange any material Tax election inconsistent with past practice, in the aggregatesettle or compromise any material Tax claim or assessment by any Governmental Entity, in excess of $25,000 for the Company taken as a whole; (v) adopt or change any accounting method with respect to Taxes, enter into any closing agreement in which the obligation with a taxing authority, surrender any right to claim a refund of a material amount of Taxes, take any action that could cause any member of the Company exceeds $10,000 or which shall not terminate or Group to cease to be subject to termination treated as an entity disregarded as separate from its owner for convenience within 30 days following execution; (vi) license any Technology or IP Rights; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e);
(f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to any of its officers, employees, agents or consultants, or grant any severance or termination pay toU.S. federal Income Tax purposes, or enter into any employment agreement waiving or severance agreement withextending any statutory period of limitations with respect to the collection or assessment of Taxes, any director, officer, employee or consultant other than in the ordinary course of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, Employee Benefit Plan or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultantbusiness;
(gi) take make any actionmaterial change in accounting policies or procedures, other than as required by GAAP, applicable Law or any Governmental Entity of competent jurisdiction;
(j) make or enter into any commitment for any capital expenditures to the extent such capital expenditure or commitment will not be satisfied by the Company Group prior to Closing; provided, however, that notwithstanding the foregoing, the Company and any Company Subsidiary shall be permitted to make: (i) capital expenditures required by Law, (ii) emergency capital expenditures in any amount that the Seller determines is necessary in its reasonable judgment to maintain its ability to operate its businesses in the ordinary course consistent with past practice, (iii) capital expenditures in any amount not exceeding $20,000,000 in the aggregate for all projects of the Company Group and usual actions (iv) capital expenditures as set forth in Section 6.01(j) of the Disclosure Schedules;
(k) settle or compromise any Action (i) involving payments by the Company Group in excess of $500,000 individually or $2,000,000 in the aggregate (net of any amount covered by insurance or indemnification) to the extent such payments will not be satisfied by the Company Group prior to Closing or (ii) that would impose any material non-monetary restrictions on the business of the Company Group that would continue after the Closing;
(l) except as required by applicable law or by any Company Benefit Plan in existence on the date hereof (i) terminate, establish, adopt or amend (or promise to take any such action(s) with respect to) any Company Benefit Plan, other than routine amendments that do not result in more than de minimis increased administrative costs, the establishment of 2021 and 2022 annual cash bonus and commission plans in the ordinary course of business and consistent with past practice, with respect to accounting methodsand at-will offer letters, policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable);
(hii) make or grant any Tax election or settle or compromise increase in the compensation of any Tax liability;
(i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), individual service provider of the Company Group with annual target compensation in excess of $250,000 other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice, (iii) make or grant any change in control or retention payments to any individual service provider of the Company Group with annual target cash compensation in excess of $250,000 (unless such amounts are included as a liability in the Working Capital calculation), (iv) take any action to accelerate the vesting or payment of any compensation for the benefit of any individual service provider of the Company Group with annual target compensation in excess of $250,000 (including without limitation with respect to the grant of any equity or equity-based or related compensation with respect to which any member of the Company Group would have a liability), or (v) hire any Person to be employed or engaged by a member of the Company Group with annual compensation in excess of $250,000 other than in the ordinary course of business consistent with past practice, or terminate the employment or engagement of any Person with annual compensation in excess of $250,000, other than for cause or other than in the ordinary course of business consistent with past practice;
(jm) take voluntarily forfeit or surrender any action that would licenses, permits, authorizations or is reasonably likely registrations issued by any Gaming Authorities necessary to result in any of own, operate, manage and conduct Gaming Activities at the representations or warranties of the Company set forth in this Agreement being untrue Real Property;
(n) modify in any material respect, respect its current practices with respect to (A) receivables from the Property or in any covenant (B) credit and financing arrangements with customers of the Company set forth in this Property;
(o) enter into, modify or amend any Intercompany Agreement being breached, or in any of the conditions to the Sale specified in Article V hereof not being satisfiedtransaction with an Affiliate; or
(kp) authorize or enter into any Contract, or otherwise resolve or agree to do any of the foregoing. Nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of the Company Group prior to the Closing. Prior to the Closing, the Sellers shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over the business operations of the Company Group.
Appears in 1 contract
Conduct of Business by the Company Pending the Sale. Unless the Purchaser shall otherwise agree in writing, the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law; and the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall notThe Seller agrees that, between the date of this Agreement and the Closing DateClosing, directly except as set forth in Section 6.01 of the Disclosure Schedules, as expressly contemplated or indirectly dorequired by any other provision of this Agreement, as required by applicable Law or propose by any Governmental Entity of competent jurisdiction or as reasonably determined by the Seller, to dobe necessary or advisable in response to any Pandemic Measures or COVID-19 or any similar epidemic, pandemic or public health emergency, unless Buyer shall otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), the Seller shall, and shall cause the Company to, use commercially reasonable efforts to conduct the operations of the Company in all material respects in the ordinary course of business consistent with past practice. Without limiting the foregoing, except as set forth in Section 6.01 of the Disclosure Schedules, as expressly contemplated or required by any other provision of this Agreement or as required by applicable Law or by any Governmental Entity of competent jurisdiction or as reasonably determined by the Seller, to be necessary or advisable in response to any Pandemic Measures or COVID-19 or any similar epidemic, pandemic or public health emergency, the Seller shall not permit the Company to, between the date of this Agreement and the Closing, do any of the following without the prior written consent of the Purchaser:Buyer (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) amend or otherwise change the Company's Articles or BylawsCompany Organizational Documents;
(b) except for issue or dispose of or authorize the issuance or disposition of shares any equity securities in the Company, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of Company Capital Stock upon any kind to acquire any such equity securities or such convertible or exchangeable securities;
(c) other than in connection with the exercise or conversion of currently outstanding Stock Purchase Rights or the issuance of shares of Company Common Stock upon the exercise of Options assumed pursuant to Section 2.4.2(c)Excluded Assets, issue, sell, contract to issue or sell, pledge, dispose of, granttransfer, lease, license or encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (other than Permitted Liens) any
(i) any material personal property, equipment or assets (other than as set forth in Section 6.01(c)(ii)) of the Company, except other than (A) in the ordinary course of business and for which the aggregate consideration paid or payable in a manner consistent any individual transaction is not in excess of $1,000,000 or for all such transactions not in excess of $10,000,000 in the aggregate, (B) pursuant to existing Contracts set forth in Section 6.01(c) of the Disclosure Schedules, or (C) in connection with past practicethe Credit Facility, or
(ii) any shares real property other than (A) the execution of capital stock easements, rights of any class way, restrictions and other similar instruments in the ordinary course of business that, individually or in the Companyaggregate, do not, and would not reasonably be expected to, materially impair the existing use and operation of, the property or asset affected by the applicable instrument, (B) the execution of Leases in the ordinary course of business or (iiiC) any options, warrants, convertible securities or other rights demolition and construction in the ordinary course of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company;
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any of its capital stockbusiness;
(d) (A) amend or terminate any of the Material Contracts or waive any material rights or claims thereunder (except for any Material Contract that is a CBA or an Excluded Asset, the Love Agreement, or any Shared Contract), or (B) enter into any Contract that, if in effect on the date hereof, would constitute a Material Contact (except for Contracts entered into in connection with the Relocation Efforts (as defined in the Letter Agreement), any CBA and any Contracts entered into in connection with the Love Agreement);
(e) reclassify, combine, split, subdividesubdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock equity securities or any options, warrants, securities or other rights exercisable for or convertible into any such equity securities;
(if) acquire merge or consolidate the Company with any person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company;
(including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof or any material amount of assets; (iig) incur any Debt financial indebtedness for borrowed money from third party lending sources (other than current trade accounts payable or lease liability incurred in respect of property or services purchased or leased in the ordinary course of business and letters of credit issued in the ordinary course of business) or assume, grant, guarantee (other than in connection with the Credit Facility, guarantees related to new debt issuances of the Seller in connection with capital markets transactions and Contracts to reaffirm existing guarantees) or endorse, or otherwise as an accommodation become responsible for, any the obligations of any Person, or make any loans or advancesadvances (other than, except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than each case, in the ordinary course of business, including, for clarity, in respect of gambling markers), for, in each case, individual amounts in excess of $1,000,000 or in the aggregate in excess of $5,000,000 (or, in the case of loans or advances to Affiliates, for amounts in the aggregate in excess of $5,000,000);
(h) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any Person (or equity interests thereof) or any assets, real property, personal property, equipment, business or other rights (whether by merger, stock purchase, asset purchase or otherwise), other than (i) acquisitions of inventory, personal property, equipment and vehicles in the ordinary course of business, substantially consistent with past practice; , or (ivii) authorize any single other acquisitions of assets for consideration that is individually or in the aggregate not in excess of $5,000,000;
(i) except in each case to the extent required by Law, file any material Tax Return inconsistent with past practice, make or change any material Tax election inconsistent with past practice, settle or compromise any material Tax claim or assessment by any Governmental Entity, adopt or change any material accounting method with respect to Taxes, enter into any closing agreement with a taxing authority or surrender any right to claim a refund of a material amount of Taxes, in each case, if the action could reasonably be expected to adversely affect the Tax liability of the Buyer after the Closing;
(j) make any material change in accounting policies or procedures, other than as required by GAAP, applicable Law or any Governmental Entity of competent jurisdiction;
(k) make or enter into any commitment to make any capital expenditures to the extent such capital expenditure which or commitment will not be satisfied by the Company prior to Closing; provided, however, that notwithstanding the foregoing, the Company shall be permitted to make (A) capital expenditures required by Law, (B) emergency capital expenditures in any amount that the Seller determines is necessary in its reasonable judgment to maintain its ability to operate its businesses in the ordinary course, (C) capital expenditures in any amount not exceeding $20,000,000 in the aggregate for all projects of the Company and (D) capital expenditures in accordance with the then approved budget of the Company or as set forth in Section 6.01(k) of the Disclosure Schedules;
(l) settle or compromise any Action (i) involving payments by the Company in excess of $500,000 individually or $1,000,000 in the aggregate (net of any amount covered by insurance or indemnification) to the extent such payments will not be satisfied by the Company prior to Closing or (ii) that would impose any material non-monetary restrictions on the Business that would continue after the Closing;
(m) (A) (x) enter into, adopt or amend any Company Benefit Plan (or any arrangement that would be a “Company Benefit Plan” if in effect on the date hereof), or (y) accelerate the payment, funding, right to payment or vesting of any compensation or benefits with respect to any employee of the Company under any Benefit Plan, in each case, to the extent that such action would reasonably be expected to result in materially increased costs to the Company or Buyer, other than as required by Law or by the terms of any Benefit Plan in existence on the date hereof, (B) grant any increase in base salary, wage rate, or target bonus to any employee of the Company with annual base compensation in excess of $250,000 following such increase, except as may be required under any Benefit Plans in existence on the date hereof, (C) terminate or transfer the service of any employee or officer of the Company whose annual base compensation is in excess of $10,000 150,000 (other than for cause), (D) hire any employee or capital expenditures which are, in individual consultant unless the aggregate, annual base compensation of such employee or individual consultant is not in excess of $25,000 for the Company taken as a whole; (v) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate or be subject to termination for convenience within 30 days following execution; (vi) license any Technology or IP Rights; 150,000 or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e);
(f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to any of its officers, employees, agents or consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer, E)replace a departing employee or individual consultant of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, Employee Benefit Plan or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant;
(gas applicable) take any action, other than reasonable and usual actions unless such hiring is done in the ordinary course of business and consistent with past practicepractice and the annual base compensation of any such employee or individual consultant shall not materially exceed the annual base compensation of such departing employee or individual consultant (as applicable) in place prior to his or her departure. In addition, the Seller shall not take any of the actions contemplated by clause (A) of this Section 6.01(m) as such actions relate to Benefit Plans that are not Company Benefit Plans to the extent that any such action would materially increase the cost to the Company or Buyer following the Closing or materially increase the Company’s or Buyer’s obligations under Section 6.06;
(n) voluntarily forfeit or surrender any licenses, permits, authorizations or registrations issued by any Gaming Authorities necessary to own, operate, manage and conduct Gaming Activities at the Real Property;
(o) modify in any material respect its current practices with respect to accounting methods, policies (A) receivables from the Business or procedures (including, without limitation, procedures B) credit and financing arrangements with respect to customers of the payment of accounts payable and collection of accounts receivable)Business;
(hp) make amend, modify or enter into any Tax election or settle or compromise any Tax liability;
CBA that applies to the employees of the Company that would impact the Company in a disproportionate and adverse manner relative to other properties owned and operated by the Seller and its controlled Affiliates (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice;
(j) 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 in any material respect, or in any covenant of the Company set forth in this Agreement being breached, or in any of the conditions to the Sale specified in Article V hereof not being satisfiedCompany); or
(kq) agree authorize or enter into any Contract to do any of the foregoing. Nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing. Prior to the Closing, the Seller shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over the Business operations.
Appears in 1 contract
Conduct of Business by the Company Pending the Sale. Unless the Purchaser shall otherwise agree in writing, the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law; and the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall not, between (a) Between the date of this Agreement and the Closing DateClosing, directly except (A) as expressly set forth in Section 6.01(a) of the Disclosure Schedules, (B) as expressly required by any other provision of this Agreement (C) as Buyer may otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or indirectly doconditioned), or propose to do(D) as required by applicable Law, any the Company shall, and shall cause each of the following without the prior written consent of the Purchaserits Subsidiaries to:
(a) amend or otherwise change the Company's Articles or Bylaws;
(b) except for the issuance of shares of Company Capital Stock upon the exercise or conversion of currently outstanding Stock Purchase Rights or the issuance of shares of Company Common Stock upon the exercise of Options assumed pursuant to Section 2.4.2(c), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any assets of the Company, except conduct their businesses and operations in all material respects in the ordinary course of business and in a manner consistent compliance in all material respects with past practice, applicable Laws;
(ii) any shares use reasonable best efforts to preserve its relationships with customers, suppliers and other third parties whose relationships are material to the Company’s business and operations;
(iii) use commercially reasonable efforts to keep available the services of capital stock of any class its current officers, employees and managers;
(iv) use commercially reasonable efforts to keep in effect the insurance policies listed in Section 4.17 of the CompanyDisclosure Schedules through the earlier of the Closing or their scheduled expiration dates; and
(v) use commercially reasonable efforts to preserve intact its current business organization, goodwill and business.
(b) Without limiting the foregoing, except (A) as expressly set forth in Section 6.01(b) of the Disclosure Schedules, (B) as expressly required by any other provision of this Agreement, (C) as Buyer may otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), or (iiiD) as required by applicable Law, the Company shall not, and shall cause each of its Subsidiaries not to:
(i) amend its Organizational Documents;
(ii) issue, dispose of, authorize the issuance or disposition of, sell, grant or convey any (A) Equity Securities of the Company or its Subsidiaries, (B) securities convertible into, or exchangeable or exercisable for, any such Equity Securities or awards, or (C) any options, warrants, convertible securities or other rights of any kind to acquire any shares such Equity Securities or such convertible or exchangeable securities;
(iii) sell, pledge, dispose of, transfer, lease or license any property, equipment or asset of such capital stockthe Company or any of its Subsidiaries, including the Company Intellectual Property Rights, other than (A) arm’s length sales of Products and Services in the ordinary course of business, (B) licenses of the Company Intellectual Property Rights granted in the ordinary course of business in connection with the license or sale of Products and Services to customers, or any other ownership interest (including, without limitation, any phantom interestC) to the extent expressly required pursuant to the terms of a Contract set forth in Section 6.01(b)(iii) of the CompanyDisclosure Schedules as in effect as of the date hereof;
(civ) create, incur, assume, permit to suffer or exist or impose any Lien (other than (A) a Permitted Lien and (B) the continued existence of Liens existing as of the date hereof) on any of its assets or properties material to the business and operation of the Company and its Subsidiaries taken as a whole;
(v) declare, set aside, accrue, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, distribution with respect to its Equity Securities, other than dividends or distributions paid by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company (but excluding, for the avoidance of doubt, any dividend or distribution of its capital stockcash by the Company);
(dvi) reclassify, combine, split, subdividesubdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock Equity Securities or any options, warrants, securities or other securitiesrights exercisable for or convertible into any such Equity Securities;
(ivii) merge or consolidate with any person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries;
(viii) acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets) any corporationinterest in any person (including any Equity Securities of any person) or any assets, partnershipreal property, personal property, equipment, business or other rights (whether by merger, stock purchase, asset purchase or otherwise), other business organization or division thereof or any material amount than purchases of assets; (ii) incur any Debt or assumeinventory, guarantee or endorse, or otherwise as an accommodation become responsible for, any obligations of any Person, or make any loans or advances, except in the ordinary course of business personal property and consistent with past practice; (iii) enter into any contract or agreement other than equipment in the ordinary course of business;
(ix) incur, consistent with past practice; assume, create, refinance or guarantee any Indebtedness (ivother than Indebtedness constituting (A) authorize an obligation in respect of capital leases in effect as of the date hereof, and (B) a loan solely between the Company and a wholly owned Subsidiary of the Company) or issue any single capital expenditure which is in excess debt securities, or assume or guarantee any obligation of $10,000 any person that would constitute Indebtedness if the Company or one of its Subsidiaries had incurred or created such obligation;
(x) make any loans, advances or capital expenditures which arecontributions to, in the aggregateor investments in, in excess of $25,000 for the Company taken as any other person (other than to a whole; (v) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate or be subject to termination for convenience within 30 days following execution; (vi) license any Technology or IP Rights; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (ewholly owned Subsidiary);
(fxi) enter into or amend (A) other than as required by the terms of any employmentCompany Benefit Plan as in effect prior to the date of this Agreement, consulting or agency agreementincrease the rate, terms, or increase the level of compensation, compensation opportunities, severance, retention, incentive, termination, or change-in-control pay, or any other benefits payable or to become payable to any of its directors, officers, employees, agents or managers, independent contractors, consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer, employee or consultant of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, Employee Benefit Plan or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant;
(g) take any actionindividual service providers, other than reasonable and usual actions broad-based, scheduled increases in the ordinary course of business and consistent with past practicepractice for employees with annual base salaries less than or equal to $75,000, (B) enter into, terminate, adopt, or materially amend any Company Benefit Plan or any other agreement, arrangement, plan, policy, program, or practice that would constitute a Company Benefit Plan if it had been in effect as of the date hereof, (C) grant or issue, or promise to grant or issue, any Options or other equity-based incentive awards to any employee or other individual service provider under the Company Option Plan or otherwise, (D) enter into, adopt, or engage in negotiations regarding, any collective bargaining agreement, works council or health and safety committee agreement, or any similar collective labor agreement or arrangement, (E) hire or engage any individual (other than ordinary-course replacement hires for employees with respect annual base salaries less than or equal to accounting methods$100,000) or terminate any employee or other individual service provider (other than a termination of any employee located in the United States for cause), policies or procedures (includingF) terminate employees in such numbers as would trigger any Liability under the Workers Adjustment Retraining and Notification Act of 1988, without limitationas amended, procedures with respect to the payment of accounts payable and collection of accounts receivable)or any similar state, local, or foreign Law;
(hxii) file any income or other material Tax Return, file any amended Tax Return, make or change any material Tax election or election, settle or compromise any Tax liabilityclaim or assessment, adopt or change any material accounting method with respect to Taxes, enter into any closing agreement with a taxing authority, surrender any right to claim a refund of a material amount of Taxes;
(ixiii) pay, discharge make any change in accounting policies or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)procedures, other than the payment, discharge as required by GAAP or satisfaction in the ordinary course of business and consistent with past practiceapplicable Law;
(jxiv) make any capital expenditures or enter into any Contract with respect thereto other than (A) the capital expenditures described on Section 6.01(b)(xiv) of the Disclosure Schedules, and (B) emergency capital expenditures in an amount that the Company reasonably determines is necessary in its reasonable judgment and following notice to, and consultation with, Buyer, to maintain the Company’s and its Subsidiaries’ ability to operate its businesses in substantially the manner as conducted on the date hereof;
(xv) initiate, settle or compromise any Action;
(xvi) enter into any new Contract that (A) if entered into prior to the date of this Agreement, would have been required to be listed in Section 4.16(a) of the Disclosure Schedules as a Company Material Contract, or (B) purports to limit, curtail or restrict (1) the kinds of businesses in which the Company or any of its current or future Affiliates may conduct, (2) the persons with whom the Company or any of its current or future Affiliates can compete, (3) the persons to whom any of the Company or any of its current or future Affiliates can sell products or deliver services, (4) the person or class of persons the Company or any of its current or future Affiliates may solicit for employment, or (5) the acquisition of any business by the Company or any of its current or future Affiliates;
(xvii) (A) amend, terminate or cancel, or take or omit to take any action that would constitute a material violation of or is reasonably likely to result in default under, or waive any of the representations material rights under, any Company Material Contract, or warranties (B) waive any right of the Company set forth in this Agreement being untrue in or any material respect, of its Subsidiaries under the confidentiality provisions of any Contract;
(xviii) (A) disclose any trade secret or in Confidential Information to any covenant person other than to employees of the Company set forth in this Agreement being breachedand its Subsidiaries (but only current employees) who (x) are subject to confidentiality or non-disclosure covenants protecting against further disclosure, and (y) have a need to know such secret or information to perform their responsibilities as an employee, or in (B) sell, encumber, abandon or allow to lapse any Intellectual Property Rights;
(xix) fail to invoice any customer or fail to pursue collection of the conditions to the Sale specified in Article V hereof not being satisfiedany accounts receivable from any client or customer, or discount any accounts receivable from any client or customer; or
(kxx) agree authorize or enter into any Contract to do any of the foregoing. Nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over its business operations.
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