Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON: (a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000; (b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity; (c) Transfer to any person or entity any rights to the Company Intellectual Property; (d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary; (e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule; (f) Commence or settle any litigation; (g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company; (h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities; (i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws; (j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; (k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices; (l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others; (m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement; (n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof; (o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees; (p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet; (r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (s) Enter into any strategic alliance or joint marketing arrangement or agreement; or (t) Take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Share Acquisition Agreement (New Era of Networks Inc)
Conduct of Business of the Company. During the period Except as required or expressly permitted by this Agreement, from and after the date of this Agreement and continuing until the earlier of the Closing Date or the termination of this Agreement or the Closingin accordance with its terms, the Company agrees shall, and shall cause each other Group Company to, except as set forth on Schedule 6.1 or as consented to in writing by Buyer (except to the extent that NEON which consent shall otherwise consent in writingnot be unreasonably withheld, conditioned or delayed), to carry on the Company's (a) conduct its business in the usualordinary and regular course consistent with past practice (including any conduct that is reasonably related, regular and ordinary course in substantially the same manner as heretofore conductedcomplementary or incidental thereto), to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to (b) use its best commercially reasonable efforts to preserve intact the Company's present intact, in all material respects, its business organizationorganization and to maintain, keep available the services in all material respects, its operations (including its commercial relationships with its clients and suppliers) and (c) not to take any of the Company's present officers and key employees and preserve following actions:
(i) enter into, materially amend, cancel, fail to renew, terminate, renew or extend any Material Contract (or any Contract that would be a Material Contract if in effect on the Company's relationships with customersdate of this Agreement), suppliersor waive, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of release or assign any event material rights or occurrence or emergency not claims thereunder other than in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice practices; provided, that any Group Company may (A) enter into, amend, modify or refinance any commitment or transaction Contract with respect to indebtedness of any type whatsoever involving individual expense in excess of $30,000 Group Company and aggregate expense in excess of $100,000(B) enter into, amend or modify any Servicing Agreement;
(bii) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on a dividend on, or make any other distributions distribution (whether in cash, stock securities or property) in respect of, its equity securities except (A) dividends and distributions by any of the Subsidiaries of the Company to any of the other Group Companies, and (B) dividends or distributions made or paid in Cash and Cash Equivalents;
(iii) (A) issue, sell, transfer, pledge, grant, dispose of, encumber or deliver any equity securities of any class or any securities convertible into or exercisable or exchangeable for voting or equity securities of its capital stockany class (except for the issuance of equity securities upon exercise of options or warrants) or (B) adjust, or split, combine combine, recapitalize or reclassify any of its capital stock equity securities;
(iv) redeem, purchase or issue or authorize the issuance of otherwise acquire any other securities in respect of, in lieu of or in substitution for shares of capital stock outstanding equity of the Company, Company or repurchase, redeem or otherwise acquireany of the Group Companies which are not wholly-owned, directly or indirectly, any shares of the capital stock of by the Company;
(hv) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire acquire or agree to acquire in any manner (whether by merging merger or consolidating withconsolidation, the purchase of an equity interest in or by purchasing any a material portion of the assets of or equity securities of, or by any other manner, otherwise) any business or any corporation, partnership, association or other business organization or division thereofthereof of any other Person other than the acquisition of assets (A) in the ordinary course of business consistent with past practices, or (B) not to exceed $10,000,000 in the aggregate;
(kvi) Selladopt any amendments to their respective Governing Documents;
(vii) dissolve or liquidate any Group Company;
(viii) (A) except as required by the terms of any Employee Benefit Plan or Material Contract as in effect on the date hereof or other than in the ordinary course of business consistent with past practices, leasegrant or announce any incentive awards, license bonus or similar compensation or any increase in the salaries, bonuses or other compensation and benefits payable by a Group Company to any of the employees or other service providers of such Group Company or (B) materially increase the benefits under any Employee Benefit Plan;
(ix) enter into any transaction with any of its officers, employees or Affiliates (or any directors, managers, officers or employees of any such Affiliate), other than employment arrangements entered into in the ordinary course of business consistent with past practices;
(x) sell, assign, license, transfer, pledge or otherwise dispose of any material assets (including Intellectual Property Rights) outside the ordinary course of its properties business, except for assets with a purchase price, in the aggregate, of less than $2,000,000;
(xi) commence or assetssettle any material Action or waive or release any material rights or claims, except in the ordinary course of business, or agree or consent to the issuance of any Order or settlement restricting or otherwise affecting its business and consistent with past practicesoperations in any manner other than as would not reasonably be expected to have, individually or in the aggregate, a material impact on the Group Companies, taken as a whole;
(lxii) Incur except as required by GAAP or by applicable Law, change any indebtedness for borrowed money of the accounting principles or practices used by a Group Company or write up, write down or write off the book value of any material asset;
(xiii) make capital expenditures in excess of $30,000 4,000,000 in the aggregate;
(xiv) incur indemnification obligations (other than increases under existing equipment leases in the ordinary course respect of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected consistent with past practice), other than as would not be reasonably expected to have, individually or reserved against in the Current Balance Sheetaggregate, a material impact on the Group Companies, taken as a whole;
(rxv) Make to the extent any such action could have a material impact on or with respect to the Tax liabilities of any Group Company prior to, on or after the Closing Date (including any increase in the adjustment to be made pursuant to Section 2.4(d), make or change any material election in respect of TaxesTax election, adopt or change any accounting method in with respect of 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 in respect assessment, surrender any right to claim a refund of Taxes, Taxes or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementassessment; or
(txvi) Takeagree or commit to do, or agree in writing resolve, authorize or otherwise approve any action to takedo, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Walter Investment Management Corp)
Conduct of Business of the Company. During the period from commencing on the date of this Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, except as expressly permitted or the Closingrequired by this Agreement, the Company agrees will (except to the extent that NEON Buyer shall otherwise consent in writing), to ) carry on the Company's its business in the usual, regular usual and ordinary course in substantially the same manner as heretofore conducted, to pay the its debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts commercially reasonable efforts, consistent with prior practice and policies, to preserve intact the Company's its present business organization, keep available the services of the Company's its present officers and key employees Employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEONBuyer, which consent shall not be unreasonably withheld, conditioned or delayed:
(a) Enter into (i) waive or release any commitment material right or transaction not claim, (ii) fail to pay, or delay in paying, accounts payable when due, (iii) modify the payment terms or payment schedule of any accounts receivable or accelerate the payment of any accounts receivable, or (iv) change any cash management practices, in each case outside of the ordinary course of business and consistent or inconsistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000prior practice;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issueissue, grant, deliver or sell sell, or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares Company Security or Security Rights with respect to any of its capital stock or securities convertible intothe foregoing, or subscriptionsterminate, rightsamend any term or provision of (including by way of repricing), warrants re-price or options to acquire, or other agreements or commitments amend the terms of any character obligating it Security Right or the terms of any Contract with respect to issue Company Securities, including accelerating or purchase any such shares or other convertible securitieswaiving the vesting thereof;
(ic) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization Person or division thereof, or otherwise acquire or agree to acquire outside of the ordinary course of business consistent with prior practice any assets in any amount;
(kd) Sellhire or engage any employees, leaseconsultants or contractors, license or otherwise dispose encourage any Employees, consultants or contractors to resign from the Company, or promote any Employees or change the employment status or titles of any Employees;
(e) fail to use commercially reasonable efforts to keep in full force all insurance policies (including renewals of such policies);
(f) enter into any Contract that contains any provision relating to a “change in control” of the Company or that would constitute a Change in Control Agreement;
(g) take any action that would have been a breach of or would reasonably be expected to cause a breach of any of its properties the provisions of Section 2.9 had such action occurred after the Balance Sheet Date and prior to the Agreement Date (without regard to disclosures on the Company Disclosure Schedules);
(h) incur any Indebtedness, draw down or assetsborrow any amounts under any existing Contracts with respect to Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities of the Company or purchase or guarantee any debt securities of others, except for advances to Employees for travel and business expenses in the ordinary course of business and consistent with past practicesprior practice;
(li) Incur make any indebtedness for borrowed money payment of, or in excess respect of, any Tax to any Person or any Governmental Entity, except to the extent that the Company reasonably believes in good faith such payment is in respect of $30,000 (other than increases under existing equipment leases a Tax that is due and payable or has been properly estimated in accordance with applicable Law as applied in a manner consistent with the ordinary course prior practice of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersthe Company;
(mj) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree fail to pay any special bonus account payable or special remuneration to any director trade payable, Indebtedness or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction liabilities on a current basis except in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with prior practice;
(rk) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Taketake, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s6.1(a) through (j) above, or any other action or omission that would prevent the Company from performing or cause the Company not to perform its covenants obligations hereunder, or that would be likely to cause any of its representations or warranties contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 7.1 or the ClosingClosing (the “Interim Period”), except as expressly contemplated by this Agreement or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction not with a third Person with respect to such securities, except for the issuance of Company Options in connection with employee compensation in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000practice;
(biii) Enter into other than cash dividends made by any agreement with respect Subsidiary of the Company to the Company Intellectual Property with or one of its Subsidiaries, split, combine, recapitalize or reclassify any person of its shares or entity other equity interests or with issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to the intellectual property acquire any of any person or entityits securities;
(civ) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketingincur, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend create, assume, prepay or otherwise modify become liable for any Indebtedness (directly, contingently or agree to do sootherwise), except make a material loan or advance to or material investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, Liability or obligation of any of the Contracts set forth or described in the Company Disclosure SchedulePerson except with respect to Subsidiaries;
(fv) Commence increase the wages, salaries or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any compensation of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable officers other than in the ordinary course of business;
, consistent with past practice, or make or commit to make any bonus payment (qwhether in cash, property or securities) Payto any employee other than in the ordinary course of business, discharge consistent with past practice, or satisfyenter into, establish, materially amend or terminate any material Company Benefit Plan with, for or in respect of any current officer, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case, except as required by applicable Law or in compliance with GAAP;
(vii) establish any Subsidiary or enter into any closing agreement, settle any claim or assessment in respect new line of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesbusiness;
(sviii) Enter revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required by applicable Law or required to comply with GAAP and after consulting with the Company’s outside auditors;
(ix) waive, release, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) in excess of $250,000 (individually or in the aggregate) or that otherwise impose non-monetary obligations that are material to the business or operations of the Target Companies;
(x) acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xii) enter into any strategic alliance agreement, understanding or joint marketing arrangement with respect to the voting of equity securities of the Company;
(xiii) enter into, amend, waive or agreementterminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txiv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During the period from the date of this Agreement and continuing until through the earlier Effective Time (the “Pre-Closing Period”), except (i) as set forth in Section 5.1 of the termination of this Agreement or the ClosingCompany Disclosure Schedule, the Company agrees (except ii) to the extent that NEON specifically required by this Agreement, (iii) as required by Applicable Law or (iv) as consented to in writing by Parent in its sole discretion [*], (A) the Company shall otherwise consent in writing), to (1) carry on the Company's its business in the usual, regular and ordinary course in substantially the same manner as heretofore conductedconducted and in compliance with Applicable Law, to pay the its debts and Taxes of the Company when due, due (subject to good faith disputes regarding such debts and Taxes for which reserves have been established in accordance with GAAP) and pay or perform other material obligations when due, and (2) use commercially reasonable efforts consistent with past practice to use keep and maintain its best efforts assets and properties in good operating condition and repair (subject to preserve intact normal wear and tear) and to preserve, maintain the Company's present business organizationvalue of, renew, extend and keep available the services of the Company's present officers in full force and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, effect all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business IP Rights of the Company, and any material event involving to maintain its business organization intact and to preserve the goodwill of the Company. Except as expressly contemplated by this Agreement’s material suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Company, and (B) the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment amend the Certificate of Incorporation or transaction not in Bylaws of the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000Company;
(b) Enter merge or consolidate with any other person;
(c) split, combine or reclassify the outstanding shares of Company Capital Stock nor enter into any agreement with respect to voting of any of the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual PropertyCapital Stock;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on dividend or make any other distributions (whether distribution, payable in cash, stock stock, property or property) otherwise, in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchaseCompany Capital Stock;
(e) purchase, redeem or otherwise acquire, directly or indirectlyexcept in connection with the repurchase of unvested shares of Company Common Stock under the Company Option Plan at a price per share not in excess of the purchase price paid for those shares, any shares of Company Capital Stock or any securities convertible or exchangeable or exercisable for any shares of Company Capital Stock;
(f) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any material Asset (except for the capital stock incurrence of Permitted Encumbrances) or any Company IP Rights;
(g) incur any indebtedness or issue any debt securities or warrants or other rights to acquire debt securities of the CompanyCompany or assume, guarantee or endorse, as an accommodation or otherwise, the obligations of any other person for indebtedness or capital obligations, in the case of any of the foregoing;
(h) Issueissue, grantsell, deliver pledge, dispose of or sell or authorize or propose the issuance, grant, delivery or sale encumber any shares of, or purchase securities convertible into or propose the purchase ofexchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or securities convertible intoany Voting Debt, or subscriptionsany other property or Assets, rightsexcept that the Company may (i) issue shares of Company Capital Stock upon the exercise of Company Options outstanding on the date of this Agreement in accordance with their terms as of the date of this Agreement, warrants or options to acquire(ii) issue shares of Company Capital Stock upon the exercise of Company Warrants outstanding as of the date of this Agreement, or other agreements or commitments and (iii) issue shares of any character obligating it to issue or purchase any such shares or other convertible securitiesCompany Common Stock upon conversion of Company Preferred Shares;
(i) Cause make or permit agree to make any amendments to its Certificate capital expenditures other than any such expenditures not in excess of Incorporation or Bylaws[*];
(j) Acquire make any material change in accounting policies or agree to acquire procedures, except as required by merging or consolidating with, GAAP or by purchasing any assets Applicable Law or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofa Governmental Entity;
(k) Sell, lease, license or otherwise dispose of revalue any of its properties material Assets except as required by GAAP;
(l) enter into, modify or assetsamend in any material manner or terminate, or waive, release or assign any material rights or claims under (i) any Material Contract pursuant to which the Company or any other party thereto has material continuing obligations, rights or interests relating to research, development, clinical trials, distribution, supply, manufacturing, marketing or co-promotion of, or collaboration with respect to, any product or product candidate for which the Company is currently engaged in research and development (excluding (A) study agreements with clinical trial sites that provide for ownership of all improvements to any of the IP Rights of the Company to the Company; (B) non-disclosure agreements entered into in the ordinary course of business that do not convey ownership of any IP Rights of any person or contain any non-competition or non-solicitation covenants; (C) Contracts with contractors or vendors providing maintenance, repair or non-technical operating services to the Company, and (D) inbound material transfer Contracts for laboratory reagents or other materials purchased in similar commercial quantities pursuant to standard Contracts that are not generally negotiated in the industry); (ii) any IP License pursuant to which the Company, or any other party thereto has, or will have, continuing obligations, rights or interests; or (iii) any real property lease;
(m) make any loan, advance, capital contribution to, or investment in, any person other than loans, advances or capital contributions to, or investments in the ordinary course of business consistent with past practice and routine travel-related expense advances to employees of the Company;
(n) (i) grant, extend, amend (except as required in the diligent prosecution of the Company IP Rights), waive or modify the Company’s rights in or to any Company IP Rights or material Third Party IP Rights, (ii) fail to diligently prosecute any Company IP Rights or (iii) fail to exercise a right of renewal or extension under or with respect to any Company IP Right or material Third Party IP Right;
(o) hire any new employees;
(p) (i) adopt, enter into, terminate or amend any Company Employee Plan (or any plan, program, policy, contract, agreement or other arrangement that would be a Company Employee Plan had it been in effect on the date hereof), except as required by Applicable Law, (ii) increase in any manner the compensation, bonus, or fringe or other benefits of, or pay any bonus to, any current or former employee or consultant, except (x) as required by any agreement existing as of the date hereof, or (y) pursuant to the Company’s annual bonus program in amounts, individually and in the aggregate, consistent with past practice and appropriately pro-rated for any partial year, (iii) pay any benefit or amount to any current or former employee or consultant not required under any Company Employee Plan, (iv) increase in any manner the severance or termination pay of any current or former employee or consultant except as required by any agreement existing as of the date hereof, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Company Employee Plan (including the grant of stock options, stock appreciation rights, performance units, restricted stock, “phantom” stock or other stock related awards), or remove any existing restrictions in any Company Employee Plans or agreements or awards made thereunder, or (vi) amend or modify any Company Option;
(q) settle or compromise any claims or litigation or adverse proceeding except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheetpractice;
(r) Make make any Tax election or settle or compromise any liability for Taxes, change any material election in respect of Taxesannual Tax accounting period, adopt or change any Tax accounting method in respect of Taxesmethod, amend any Tax Return, enter into any closing agreementagreement relating to any Tax, settle surrender any right to claim or assessment in respect of Taxes, a Tax refund or consent to any extension or waiver of the limitation statute of limitations period applicable to any Tax claim or assessment in respect of Taxesassessment;
(s) Enter into accelerate collection of any strategic alliance notes or joint marketing arrangement accounts receivable in advance of their regular due dates, or agreementthe dates when the same would have been collected, other than in the ordinary course of business consistent with past practices;
(t) delay payment of any account payable or other liability beyond its due date, or the date such liability would have been paid or collected, other than in the ordinary course of business consistent with past practices or to the extent the Company is contesting such payable or liability in good faith; or
(tu) Take, authorize or agree in writing or otherwise enter into an agreement to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent foregoing. If the Company from performing or cause desires to take an action which would be prohibited pursuant to this Section 5.1 of this Agreement without the prior written consent of Parent, the Company not may request such written consent by sending an email to perform its covenants hereunder.both of the following individuals: [*] [*]
Appears in 1 contract
Conduct of Business of the Company. During Except as contemplated by this Agreement (including the period last sentence of this Section 6.1), from and after the date of this Agreement and continuing hereof until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Seller shall, except as set forth on Schedule 6.1 or the Closingas consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (i) use commercially reasonable efforts to cause the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not conduct its business in the ordinary course of business and (b) use commercially reasonable efforts to preserve its business organization and preserve in all material respects the present commercial relationships with key Persons with whom it does business and (ii) not permit the Company to do any of the following:
(a) enter into, terminate or modify any Material Contract, other than in the ordinary course of business consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000practices;
(b) Enter into declare, set aside or pay a dividend on, or make any agreement with other distribution in respect to the Company Intellectual Property with any person of, its equity securities except dividends or entity distributions made or with respect to the intellectual property of any person or entitypaid in Cash and Cash Equivalents;
(c) Transfer to (i) issue, sell, transfer, pledge, grant, dispose of, encumber or deliver any person equity securities of any class or entity any rights to the Company Intellectual Property;
(d) Enter securities convertible into or amend any Contract pursuant to which any other party is granted marketing, distribution exercisable or similar rights exchangeable for voting or equity securities of any type class or scope with respect to any products or technology of the Company or the Subsidiary;
(eii) Amend or otherwise modify (or agree to do so)adjust, except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible equity securities;
(id) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire acquire or agree to acquire by merging or consolidating with, or by purchasing in any assets or equity securities of, or by any other manner, manner any business or any corporation, partnership, association or other business organization or division thereofthereof of any other Person (including by merger or consolidation with or into, the purchase of more than 20% of the equity interests in, or the purchase of all or substantially all of the assets of, any such Person);
(e) adopt any amendments to its Governing Documents;
(f) enter into a Contract requiring capital expenditures after the date of this Agreement in an amount in excess of $150,000 in any calendar year, except as contemplated in the Company’s capital expenditure budget for the year ending December 31, 2014;
(g) merge or consolidate with or into any other Person or dissolve or liquidate;
(h) except as required by the terms of any Employee Benefit Plan or Material Contract as in effect on the date hereof, (i) grant or announce any new incentive awards, bonus or similar compensation or any increase in the salaries or bonuses payable by the Company to any of the employees of the Company; provided that the Company shall be permitted to increase the salaries of its employees and pay bonuses to its employees, in each case in the ordinary course of business consistent with past practices, (ii) increase the benefits under any Employee Benefit Plan, (iii) otherwise enter into any transaction outside of the ordinary course of business with any of its officers or employees, (iv) take any action with respect to the grant of any Change of Control Payment or severance or termination pay that will become due and payable after the Closing Date; or (v) hire any additional executive officer whose annual compensation exceeds $150,000;
(i) mortgage, pledge or subject to any Lien, other than Permitted Liens, any of its properties or assets that are material to the business of the Company;
(j) sell or otherwise dispose of any material assets outside the ordinary course of business, except for assets with a cost basis, in the aggregate, of less than $100,000, provided that the Company will not sell or otherwise dispose of the Syringe Equipment;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices, commence or settle any claim, action or proceeding, in each case involving an amount in excess of $150,000 individually or in the aggregate;
(l) Incur incur any indebtedness for borrowed money in excess of $30,000 Indebtedness (other than increases under existing equipment leases in the ordinary course of business) business substantially in accordance with past practice under credit facilities existing on the date hereof and other than performance bonds or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities pursuant to letters of otherscredit entered into in the ordinary course of business substantially in accordance with past practice);
(m) Grant make any loans to others loans, advances or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) capital contributions to any director or officer or (ii) Person, except for advances to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Planemployees, officers, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than consultants for expenses incurred in the ordinary course of business;
(qn) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make make or change any material election in Tax election, settle or compromise any Tax proceeding, liability for Taxes, or right to refund of Taxes, or enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or foreign law), change an annual accounting period with respect of to Taxes, adopt or change any accounting method in with respect of to Taxes, enter into file or amend any closing agreement, settle any claim or assessment in respect of TaxesTax Return, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementrelating to the Company; or
(to) Take, or agree in writing or otherwise to take, take any of the actions described set forth in Sections 5.1(a)-(sthe foregoing clauses (a) abovethrough (n), except as otherwise contemplated by this Agreement. Without limiting the forgoing, (x) nothing contained in this Agreement is intended to give Buyer, directly or any other action that would prevent indirectly, the right to control or direct the Company’s operations prior to the Closing, and (y) Seller and the Company from performing or cause may use any and all available Cash and Cash Equivalents to repay any Indebtedness prior to the Company not to perform its covenants hereunderClosing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Albany Molecular Research Inc)
Conduct of Business of the Company. During Prior to the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the ClosingClosing Date, the Company agrees (except to the extent that NEON Shareholders shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes cause each of the Company when dueand its Subsidiaries to (i) conduct its business only in the ordinary course, to pay or perform other obligations when due(ii) maintain in traditional repair all of its tangible property, and to (iii) use its reasonable best efforts to preserve intact the Company's present its business organization, (iv) use reasonable best efforts to keep available the services of the Company's its present officers and key employees employees, and (v) use reasonable best efforts to preserve in all material respects its present business relationships and goodwill. Without limiting the foregoing, except as otherwise expressly permitted by this Agreement, the Company's relationships with customers, supplierswithout the prior consent of Buyer, distributorsshall not and the Shareholders shall cause each of the Company and its Subsidiaries not to:
(a) amend its articles of incorporation or By-laws or other charter documents;
(b) purchase, licensorsredeem, licenseesissue, and others having business dealings with itsell, all with the goal offer to sell or otherwise dispose of, directly or indirectly, any of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON its capital stock or other equity securities, or create or suffer to be created any Lien thereon, or reclassify, split-up or otherwise change any of its capital stock or other equity securities or grant or enter into any options, covenants or calls or other rights to purchase, exchange or convert any obligation into any of its capital stock or other equity securities;
(c) organize any Subsidiary or acquire any capital stock or other equity securities of any event Person or occurrence or emergency not any Investment in any Person;
(d) incur any Indebtedness, except for Indebtedness incurred in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiarypractice;
(e) Amend pay, discharge or otherwise modify satisfy any claim, liability or obligation (whether fixed or agree to do socontingent), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(qf) Paymake or grant any increases in salaries, discharge bonuses, benefits or satisfy, in an amount in excess other remuneration to the officers or employees of $30,000 (in any one case) or $50,000 (the Company not in the aggregate)ordinary course of business;
(g) sell, assign, transfer, convey, lease, pledge, encumber or otherwise dispose of or agree to sell, assign, transfer, convey, lease, pledge, encumber or otherwise dispose of any claimof its assets or properties, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)any other material right, other than in the paymentordinary course of business;
(h) declare or pay any dividend or make any other payment or distribution in respect of its capital stock or other equity securities, discharge except payments or satisfaction distributions made in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(ri) Make enter into any Contract that would be required to be disclosed on Schedule 4.11, including, without limitation, any Contract with any Affiliate of any Shareholder or the Company;
(j) make any change in any material election method of accounting or auditing practice;
(k) amend, modify or cancel any Contract, Permit or lease;
(l) grant or extend any power of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of Taxesthe obligation of any Person, adopt other than through endorsements of negotiable instruments in the ordinary course of business;
(m) in any other manner, modify, change or change any accounting method in respect otherwise alter the fundamental nature of Taxes, the Business;
(n) enter into any closing agreement, settle Contract whereby the Company or any claim or assessment in respect of Taxes, or consent to any extension or waiver Subsidiary of the limitation period applicable Company would incur a loss with respect to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementsuch Contract; or
(to) Take, or agree in writing or otherwise to take, take any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the Purchaser shall otherwise consent in writing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the ClosingClosing (the “Interim Period”), except as expressly contemplated by this Agreement the Seller shall, and shall cause the Company agrees to, (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's i) conduct its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business and assets, and any (iii) take all reasonable measures necessary or appropriate to preserve intact its business organization and prospects, to keep available the services of its shareholder, consultants, managers, and directors, to maintain, in all material event involving respects, their existing relationships with all Top Customers and Top Suppliers, and to preserve the Company. Except possession, control and condition of its material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 6.2(a) and except as contemplated by the terms of this Agreement, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser, the Seller shall not, and shall cause the Company to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its Equity Securities or any Options or rights of any kind to acquire, sell or vote any of its Equity Securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its Equity Securities or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its Equity Securities, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its Equity Securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), outside the ordinary course of business, in excess of $10,000 (individually or in the aggregate), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person;
(v) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vi) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any of the Company Registered IP, Company Licensed IP or other Company IP, or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(vii) terminate, or waive or assign any material right under, any Company Material Contract outside of the ordinary course of business or enter into any commitment Contract (A) involving amounts reasonably expected to exceed $10,000 per year or transaction $10,000 in the aggregate, (B) that would be a Company Material Contract or (C) with a term longer than one year that cannot be terminated without payment of a penalty and upon notice of sixty days or less;
(viii) fail to maintain its books, accounts and records in all material respects in the ordinary course of business and consistent with past practice practice;
(ix) establish any Subsidiary or enter into any commitment new line of business;
(x) fail to keep in force insurance policies or transaction replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are currently in effect;
(xi) revalue any type whatsoever involving individual expense of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $30,000 and aggregate expense 10,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiii) cease or materially reduce its activities;
(xiv) acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xv) make capital expenditures in excess of $100,00010,000 (individually for any project (or set of related projects) or $10,000 in the aggregate);
(bxvi) Enter adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xvii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $10,000] individually or $50,000 in the aggregate other than pursuant to the terms of a Company Material Contract;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any portion of its properties, assets or rights;
(xix) enter into any agreement agreement, understanding or arrangement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property voting of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock Equity Securities of the Company;
(hxx) Issue, grant, deliver take any action that would reasonably be expected to significantly delay or sell or authorize or propose impair the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments obtaining of any character obligating it consents or approvals of any Governmental Authority to issue or purchase any such shares or other convertible securitiesbe obtained in connection with this Agreement;
(ixxi) Cause enter into, amend, waive or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 terminate (other than increases under existing equipment leases terminations in the ordinary course of businessaccordance with their terms) or guarantee any such indebtedness or issue or sell transaction with any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementRelated Person; or
(txxii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Samples: Share Purchase Agreement (Sunburst Acquisitions v Inc)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except for the Interim Period Investment or as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction not with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $250,000 individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business and consistent with past practice business), or guarantee or endorse any commitment Indebtedness, Liability or transaction obligation of any type whatsoever involving individual expense Person in excess of $30,000 and aggregate expense 250,000 individually or $500,000 in excess of $100,000the aggregate;
(bv) Enter into any agreement with respect to increase the Company Intellectual Property with any person wages, salaries or entity or with respect to the intellectual property compensation of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any its employees other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except than in the ordinary course of business, or violate the terms ofconsistent with past practice, and in any of the Contracts set forth or described event not in the Company Disclosure Schedule;
aggregate by more than five percent (f) Commence or settle any litigation;
(g) Declare5%), set aside or pay any dividends on or make or commit to make any other distributions bonus payment (whether in cash, stock property or propertysecurities) to any employee, or materially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any of its capital stockcurrent consultant, officer, manager director or splitemployee, combine or reclassify any of its capital stock or issue or authorize in each case other than as required by applicable Law, pursuant to the issuance terms of any other securities in respect of, in lieu of Company Benefit Plans or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practicespractice;
(lvi) Incur make or rescind any indebtedness material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for borrowed money refund, or make any material change in excess of $30,000 its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP, other than increases under existing equipment leases in the ordinary course of business) business consistent with past practice, or guarantee disclose to any such indebtedness or issue or sell Person who has not entered into a confidentiality agreement any debt securities or guarantee any debt securities of othersTrade Secrets;
(mviii) Grant terminate, or waive or assign any loans to others or purchase debt securities of others or amend the terms of material right under, any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, Company Material Contract or enter into any Employee AgreementContract that would be a Company Material Contract, pay or agree to pay in any special bonus or special remuneration to any director or employee, or increase case outside of the salaries or wage rates ordinary course of its employeesbusiness consistent with past practice;
(pix) Revalue fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its assetsmaterial assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including without limitation writing down any suit, action, claim, proceeding or investigation relating to this Agreement or the value transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of inventory monetary damages (and not the imposition of equitable relief on, or writing off notes the admission of wrongdoing by, a Target Company or accounts receivable its Affiliates) not in excess of $250,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities other than in the ordinary course of business;
(qxv) Payacquire, discharge including by merger, consolidation, acquisition of equity interests or satisfyassets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $250,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) except for Transaction Expenses, voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $250,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights in an amount in excess of $30,000 (in any one case) 250,000 individually or $50,000 (500,000 in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), aggregate other than in the paymentordinary course of business;
(xx) except for the Ancillary Documents, discharge enter into any agreement, understanding or satisfaction arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rxxiii) Make enter into, amend, waive or change terminate (other than terminations in accordance with their terms) any material election transaction with any Related Person (other than compensation and benefits and advancement of expenses, in respect each case, provided in the ordinary course of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementbusiness consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees shall, and shall cause its Subsidiaries to, (except i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, and (ii) use commercially reasonable efforts to (A) comply, in all material respects, with all Laws applicable to the extent that NEON shall otherwise consent in writing)Target Companies and their respective businesses, to carry on the Company's business in the usual, regular assets and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueemployees, and to use its best efforts to (B) preserve intact the Company's present intact, in all material respects, their respective business organizationorganizations, keep available the services of the Company's present officers their respective managers, directors, officers, employees and key employees consultants, and preserve the Company's relationships with customerspossession, suppliers, distributors, licensors, licensees, control and others having business dealings with itcondition of their respective material assets, all as consistent with past practice.
(b) Without limiting the goal generality of preserving unimpaired the Company's goodwill Section 5.2(a) and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law or in connection with a Permitted Financing;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction not with a third Person with respect to such securities (in each case, except in connection with any Permitted Financing;
(iii) split, reverse split, combine, subdivide, exchange, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $100,000 individually or $250,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to directors, officers or employees in the ordinary course of business and consistent with past practice or pursuant to the Company’s advancement obligations under its Organizational Documents or any commitment indemnification agreement with such Person in effect as of the date hereof), or transaction guarantee or endorse any Indebtedness, Liability or obligation of any type whatsoever involving individual expense Person in excess of $30,000 and 100,000 individually or $250,000 in the aggregate expense (in excess each case other than indebtedness of $100,000the Company convertible into Company Common Stock issued in connection with a Permitted Financing);
(bv) Enter into any agreement with respect to increase the Company Intellectual Property with any person wages, salaries or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any compensation of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager, director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make, change, or change rescind any material election in respect relating to Taxes, settle any Action relating to Taxes, amend any Tax Return or file a claim for refund, surrender any right to claim a refund of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to any Target Company (other than in respect connection with automatic extensions of Taxestime to file Tax Returns obtained in the ordinary course of business), or adopt or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(svii) Enter transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, material Company Licensed IP or other material Company IP (excluding non-exclusive licenses of Company Licensed IP to Target Company customers in the ordinary course of business consistent with past practice and excluding licenses to Off-the-Shelf Software), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any strategic alliance Contract that would be a Company Material Contract, in any case outside of the ordinary course of business consistent with past practice;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or joint marketing enter into any material new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any Action (other than Transaction Litigation, which shall be subject to Section 5.9(f)), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $100,000 individually or $300,000 in the aggregate, or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets or otherwise, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $100,000 (individually for any project (or set of related projects) or $250,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xix) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company, except in connection with a Permitted Financing;
(xx) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxi) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses in the ordinary course of business consistent with past practice); or
(txxiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described foregoing actions. Notwithstanding anything in Sections 5.1(a)-(sthis Section 5.2 or this Agreement to the contrary, (a) abovenothing set forth in this Agreement shall give the Purchaser, directly or indirectly, the right to control or direct the operations of the Target Companies prior to the Closing, and (b) any action taken, or omitted to be taken, by any Target Company to the extent such act or omission is reasonably determined by the Company, based on the advice of outside legal counsel, to be necessary to comply with any applicable Law or Order issued by a Governmental Authority providing for business closures, “sheltering-in-place” or other action restrictions that would prevent the Company from performing relates to or cause the Company not is a result of COVID-19 shall in no event be deemed to perform its covenants hereunderconstitute a breach of this Section 5.2.
Appears in 1 contract
Conduct of Business of the Company. During Except as contemplated by this Agreement or with the prior written consent of Buyers, during the period from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall otherwise consent in writing)will, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes will cause each of the Company when dueSubsidiaries to, to pay or perform other obligations when dueconduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts to, and to use its best efforts to cause each Company Subsidiary to, preserve intact the Company's present business organizationorganization of the Company and each of the Company Subsidiaries, to keep available the services of the Company's present officers and key employees of the Company and the Company Subsidiaries, and to preserve the Company's goodwill of customers, suppliers and all other Persons having business relationships with customers, suppliers, distributors, licensors, licenseesthe Company and the Company Subsidiaries. Without limiting the generality of the foregoing, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly otherwise contemplated by this Agreement, prior to the Effective Time, the Company shall will not, and will not permit any Company Subsidiary to, without the prior written consent of NEONBuyers:
(a) Enter adopt any amendment to the Company Charter Documents or the comparable organizational documents of any Company Subsidiary;
(b) except for issuances of capital stock of Company Subsidiaries to the Company or a wholly owned Company Subsidiary, issue, reissue or sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or capital stock, other than the issue of Common Shares, in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to the exercise of Company Stock Options outstanding on the date hereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock other than between the Company and any Company Subsidiary;
(d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities;
(e) increase the compensation or fringe benefits payable or to become payable to its directors, officers or significant employees (whether from the Company or any Company Subsidiaries), or pay any benefit not required by any existing plan or arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units) or grant any severance or termination pay to (except pursuant to existing agreements, plans or policies other than payments to be made solely as a result of the transactions contemplated hereby), or enter into any employment or severance agreement with, any director, officer or other significant employee of the Company or any Company Subsidiaries or establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable Law; provided, however, that nothing in this Agreement will be deemed to prohibit the payment of benefits as they become payable;
(f) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise), any assets, including capital stock of the Company Subsidiaries (other than the acquisition and sale of inventory or the disposition of used or excess equipment and the purchase of raw materials, supplies and equipment, in either case in the ordinary course of business consistent with past practice), that in the aggregate is in excess of $100,000, or enter into any material commitment or transaction not outside the ordinary course of business, other than transactions between a wholly owned Company Subsidiary and the Company or another wholly owned Company Subsidiary that in the aggregate is in excess of $100,000;
(g) (i) incur, assume or prepay any long-term Indebtedness or incur or assume any short-term Indebtedness (including, in either case, by issuance of debt securities), which in the aggregate is in excess of $100,000, except that the Company and the Company Subsidiaries may incur, assume or prepay Indebtedness in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business, or (iii) make any loans, advances or capital contributions to, or investments in, any other Person, which in the aggregate is in excess of $100,000, except (x) in the ordinary course of business, (y) loans, advances, capital contributions or investments between any wholly owned Company Subsidiary and (z) Indebtedness described on Schedule 6.1(g) of the Company Disclosure Letter; or
(h) terminate, cancel or request any material change in, or agree to any material change in any Contract which is material to the Company and the Company Subsidiaries taken as a whole, or enter into any Contract which would be material to the Company and the Company Subsidiaries taken as a whole, in either case other than in the ordinary course of business consistent with past practice; or make or authorize any capital expenditure, other than capital expenditures that are provided for in the Company's budget for the Company and the Company Subsidiaries taken as a whole for the current fiscal year;
(i) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract as required pursuant to which any other party is granted marketing, distribution applicable Law or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or BylawsGAAP;
(j) Acquire waive, release, assign, settle or agree to acquire by merging compromise any material rights, claims or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereoflitigation;
(k) Sellmake any Tax election or settle or compromise any material federal, leasestate, license local or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;foreign income Tax liability; or
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, authorize or enter into any Employee Agreement, pay formal or agree to pay any special bonus informal written or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing agreement or otherwise make any commitment to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Company and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer to split, combine, recapitalize or reclassify any person of its shares or entity any rights to the Company Intellectual Property;
(d) Enter into other equity interests or amend any Contract pursuant to which issue any other party is granted marketing, distribution securities in respect thereof or similar rights of any type pay or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside any dividend or pay any dividends on or make any other distributions distribution (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iiv) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating withincur, or by purchasing any assets or equity securities ofcreate, or by any other mannerassume, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license prepay or otherwise dispose of become liable for any of its properties Indebtedness (directly, contingently or assets, except in the ordinary course of business and consistent with past practices;
(lotherwise) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases 1,000,000, make a loan or advance to or investment in any third party or guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess of $1,000,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company IP Licenses or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force material insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $500,000 (individually or $1,000,000 in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $600,000 (individually for any project (or set of related projects) or $2,000,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) not referenced in another subsection of this Section 5.2(b) in excess of $500,000 individually or $1,000,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions; provided, that any actions described reasonably taken in Sections 5.1(a)-(s) above, or any other action that would prevent good faith by the Company from performing or cause its Subsidiaries to the Company extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to perform its covenants hereunderconstitute a breach of the requirements set forth under this Section 5.2. The Company shall notify the Purchaser in writing of any such actions taken in accordance with the foregoing proviso and shall use reasonable best efforts to mitigate any negative effects of such actions on the business of the Target Company, in consultation with the Purchaser whenever practicable.
Appears in 1 contract
Samples: Merger Agreement (Pono Capital Corp)
Conduct of Business of the Company. During Unless Spinco shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents, the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its assets. The Company shall provide advance written notice to Spinco of any material event involving action that is not within the Companyordinary course and consistent with past practice. Except as expressly contemplated by the terms of this AgreementAgreement or the Ancillary Documents, during the Company shall notInterim Period, without the prior written consent of NEONthe Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(a) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(b) Enter other than in respect of (i) grants of equity awards to Company management that will be included in the Company Fully Diluted Shares at the Effective Time , or (ii) the June 2023 Note Offering or any other capital raising transactions involving issuances of equity or equity-linked securities that will be included in the Company Fully Diluted Shares at the Effective Time (the “Company Permitted Financing”), authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(c) Transfer split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any person or entity of its securities (except for the repurchase of Company Shares from former employees, non-employee directors and consultants in accordance with agreements as in effect on the date hereof providing for the repurchase of shares in connection with any rights to the Company Intellectual Propertytermination of service);
(d) Enter into other than in respect of the June 2023 Note Offering or amend any Contract pursuant to which any other party is granted marketingCompany Permitted Financing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend incur, create, assume, prepay, commit to, or otherwise modify become liable for any Indebtedness (directly, contingently or agree otherwise) in excess of $500,000 individually or $1,000,000 in the aggregate, make a loan or advance to do so), except or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 500,000 individually or $1,000,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(me) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
(q) Pay, discharge or satisfyconsistent with past practice, in an amount in excess of $30,000 (and in any one case) or $50,000 (event not in the aggregateaggregate by more than five percent (5%), or make or commit to make any claimbonus payment (whether in cash, liability property or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), securities) other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, to any employee, or increase other benefits of liabilities reflected employees generally, or reserved against enter into, establish, amend or terminate any Company Benefit Plan other than as required by applicable Law or pursuant to the terms of any Company Benefit Plans;
(f) take any action to accelerate the payment, funding, right to payment or vesting of any compensation or benefits;
(g) make or rescind any material election relating to Taxes, settle any material Action, arbitration, investigation, audit or controversy relating to Taxes, file any material amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(h) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any Intellectual Property Rights (excluding non-exclusive licenses of Intellectual Property Rights to Company customers in the Current Balance Sheetordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(i) terminate, waive, renew, extend, assign, or fail to maintain in effect any material right under, any Company Material Contract;
(j) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(k) voluntarily terminate, cancel, materially modify or amend, permit to lapse, or fail to keep in force any insurance policies maintained for the benefit of the Company or providing insurance coverage with respect to its assets, operations and activities, without replacing or revising such policies with a comparable amount of insurance coverage with substantially similar coverage to that which is currently in effect;
(l) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(m) waive, release, assign, commence, initiate, satisfy, settle or compromise any Action, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $500,000 individually or $1,000,000 in the aggregate, or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financial Statements;
(n) close or materially reduce its activities, or effect any material layoff or other material personnel reduction or change, at any of its facilities;
(o) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(p) authorize, recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation, rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or similar transaction;
(q) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $500,000 individually or $1,000,000 in the aggregate, other than pursuant to the terms of an existing contract of the Company or Company Benefit Plan, for Transaction Fees and Expenses incurred by the Company in connection with the transactions contemplated by this Agreement, or pursuant to the June 2023 Note Offering;
(r) Make purchase, sell, lease, license, transfer, exchange or change any material election in respect of Taxesswap, adopt pledge, mortgage or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim otherwise pledge or assessment in respect of Taxesencumber (including securitizations), or consent to transfer or otherwise dispose of any extension portion of its properties, assets or waiver rights (including equity interests of the limitation period applicable to any claim or assessment Company) in respect each case in excess of Taxes$500,000 in the aggregate;
(s) Enter into take any strategic alliance action that would reasonably be expected to significantly delay or joint marketing arrangement impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(t) accelerate the collection of any trade receivables or agreementdelay the payment of trade payables or any other Liabilities other than in the ordinary course of business consistent with past practice; or
(tu) Takeenter into, amend, waive or agree terminate (other than terminations in writing or otherwise to take, accordance with their terms) any transaction with (i) any of the actions described in Sections 5.1(a)-(sCompany’s Affiliates; (ii) aboveany officer, director, manager, employee, trustee or beneficiary of the Company or any of its Affiliates; or (iii) any immediate family member of any of the foregoing (whether directly or indirectly through an Affiliate of such Person) (other action that would prevent than compensation and benefits and advancement of expenses, in each case, provided in the Company from performing or cause the Company not to perform its covenants hereunderordinary course of business consistent with past practice).
Appears in 1 contract
Conduct of Business of the Company. During Except as expressly contemplated by this Agreement or with the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business will conduct its operations only in the usual, regular ordinary and ordinary usual course in substantially the same manner as heretofore conducted, to pay the debts of business consistent with past practice and Taxes of the Company when due, to pay or perform other obligations when due, and to will use its best reasonable efforts to preserve intact the business organization of the Company's present business organization, to keep available the services of the Company's its present officers and key employees employees, and to preserve the Company's good will of those having business relationships with customers, suppliers, distributors, licensors, licenseesit. Without limiting the generality of the foregoing, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as otherwise expressly contemplated by this Agreement, the Company shall will not, prior to the Effective Time, without the prior written consent of NEON:
Purchaser: (a) Enter into adopt any commitment amendment to its Certificate of Incorporation or transaction By-laws or comparable organizational documents; (b) issue, reissue, pledge or sell, or authorize the issuance, reissuance, pledge or sale of (i) additional shares of capital stock of any class, or securities convertible into, exchangeable for or evidencing the right to substitute for, capital stock of any class, or any rights, warrants, options, calls, commitments or any other agreements of any character, to purchase or acquire any capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, capital stock, other than the issuance of Shares, pursuant to the exercise of Options outstanding on the date hereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof; (c) declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock; (d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities other than (i) the purchase and cancellation of Options in accordance with Section 1.09 of the Agreement or (ii) repurchases from employees at cost upon termination of their employment with the Company; (e) except for increases in salary and wages granted to officers and employees of the Company in conjunction with promotions or other changes in job status or normal compensation reviews in the ordinary course of business consistent with past practice (all of which shall be promptly disclosed to Purchaser), increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees, or pay or award any benefit not required by any existing plan or arrangement (including, without limitation, the granting of stock options pursuant to the Option Plans or otherwise) or grant any additional severance or termination pay to (other than as
(i) except for drawdowns and the payment of the Inter-Company Loan described in Section 1.10 hereof, incur, assume or pre-pay any long-term debt or incur or assume any short-term debt, except that the Company may incur or pre- pay debt in the ordinary course of business in amounts and for purposes consistent with past practice, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other Person except in the ordinary course of business consistent with past practice; (h) settle or compromise any suit or claim or threatened suit or claim; (i) other than in the ordinary course of business consistent with past practice, (i) modify, amend or terminate any contract, (ii) waive, release, relinquish or assign any contract (or any of the Company's rights thereunder), right or claim, or (iii) cancel or forgive any indebtedness owed to the Company; (j) make any tax election not required by law or settle or compromise any tax liability, in either case that is material to the Company except for an election pursuant to Section 338(h)10 of the Code in connection with this Agreement and the transactions contemplated hereunder; (k) make any material change, other than in the ordinary course of business and consistent with past practice or any commitment as required by applicable law, regulation or transaction of any type whatsoever involving individual expense change in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to generally accepted accounting principles, applied by the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity(including tax accounting principles);
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Microsemi Corp)
Conduct of Business of the Company. During the period Except as set forth in Schedule 3.2, from the date of this Agreement and continuing until the earlier of the termination of this Agreement or hereof to the Closing, XXXX will cause the Company agrees (except a) to the extent that NEON shall otherwise consent in writing), to carry on the Company's conduct its business only in the usual, regular and ordinary course in substantially the same manner as heretofore conductedheretofore, (b) to pay maintain and keep its properties and equipment in such repair, working order and condition as is sufficient for the debts operation of its business in the ordinary course, (c) to keep in full force and Taxes effect insurance comparable in amount and scope of coverage to that now maintained by it (to the Company when dueextent available on commercially reasonable terms in the case of any renewal or replacement policies), (d) to pay perform in all material respects all of its obligations under all contracts and commitments applicable to its business or perform other obligations when dueproperties, and (e) to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees maintain and preserve the Company's business organization intact, and maintain satisfactory relationships with customersemployees, suppliers, distributors, licensors, licensees, distributors and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at customers so that they will be preserved after the Closing. The Company shall , (f) to maintain its books of account and records in the usual and regular manner, (g) to comply in all material respects with all laws and regulations applicable to it and to the conduct of its business, (h) not to amend its Articles of Incorporation or Bylaws, (i) not to merge or consolidate with, or agree to merge or consolidate with, or to purchase substantially all of the assets of, or otherwise acquire, any business or any business organization or division thereof, (j) not to make any material commitments or expenditures, other than those previously disclosed to Purchaser, (k) promptly notify NEON to advise the Purchaser in writing of any event emergency or occurrence other change in the normal course of business or emergency not in the operations of its properties and of any governmental or any other third party complaints, investigations or hearings (or communications indicating that the same may be contemplated), (l) promptly advise the Purchaser of any material adverse change in its business, operations or financial condition, (m) to collect its accounts receivable in the ordinary course of business of the Companyconsistent with past practice, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(an) Enter into any commitment or transaction not to pay its accounts payable in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketingpractice, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration use its best efforts to any director or employee, or increase insure that the salaries or wage rates representations and warranties contained in Section 2 hereof shall be true and correct as of its employees;
the Closing Date and (p) Revalue not to take any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, any of the actions action described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderSection 2.1.14 hereof.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 100,000 individually or $250,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 100,000 individually or $250,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $100,000 (individually for any project (or set of related projects) or $250,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually or $250,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice);
(xxiv) maintain the existing relations and goodwill of the Target Companies with customers, suppliers, distributors and creditors of the Target Companies and use commercially reasonable efforts to maintain all insurance policies of the Target Companies or equivalent substitutes therefor; or
(txxv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aesther Healthcare Acquisition Corp.)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents, except as required by applicable Law or transaction not as required in connection with the ordinary course Company Charter Amendment;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of business and consistent with past practice or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 100,000 individually or $250,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 100,000 individually or $250,000 in the aggregate (provided, that this Section 5.2(b)(iv) shall not prevent the Company from borrowing funds necessary to (A) finance its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of businessthe Merger and the other transactions contemplated by this Agreement, on such terms and conditions as set forth in the note purchase agreement and promissory note (which funding is not contingent upon the Closing) attached as Exhibit H-1 hereto (in each case with the amount of the “Conversion Price” (as defined therein) subject to the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or guarantee any conditioned) (such indebtedness promissory note, the “Non-Contingent Company Interim Period Note”), or issue (B) payoff and satisfy certain obligations of the Target Companies set forth on Schedule 5.2(b)(iv) (the “Payoff Obligations”) on such terms and conditions as set forth in the note purchase agreement and promissory note (which funding is contingent upon the Closing) attached as Exhibit H-2 hereto (in each case with the amount of the “Conversion Price” (as defined therein) subject to the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or sell any debt securities or guarantee any debt securities conditioned) (such promissory note, the “Contingent Company Interim Period Note” and, together with the Non-Contingent Company Interim Period Note, the “Company Interim Period Notes”) (up to aggregate additional Indebtedness under clauses (A) and (B) during the Interim Period of others$2,500,000);
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $100,000 (individually for any project (or set of related projects) or $250,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually or $250,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Section 5.2 of the Company Disclosure Schedule, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business consistent with past practice and (ii) comply, in all material respects, with all Laws applicable to the Target Companies and their respective businesses, assets and employees.
(b) Without limiting the generality of the Company, Section 5.2(a) and any material event involving the Company. Except except as expressly contemplated by the terms of this Agreement, the Ancillary Documents or as set forth on Section 5.2 of the Company shall notDisclosure Schedule, during the Interim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(bii) Enter other than in connection with the Contribution and the Conversion, authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or other similar rights to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer other than in connection with the Contribution and the Conversion, split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any person or entity any rights to the Company Intellectual Propertyof its securities;
(div) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of than the Company or the Subsidiary;
(e) Amend Credit Facility Restructuring or otherwise modify (or agree to do so), except in the ordinary course of business, (A) incur, create, assume, prepay or violate the terms ofotherwise become liable for any Indebtedness (directly, any of the Contracts set forth contingently or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stockotherwise), or split, combine (B) make a loan or reclassify advance to or investment in any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 third party (other than increases under existing equipment leases advancement of expenses to employees in the ordinary course of business) ), or guarantee or endorse any such indebtedness Indebtedness, Liability or issue or sell obligation of any debt securities or guarantee any debt securities of othersPerson;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business, (A) increase the wages, salaries or compensation of its employees, or (B) materially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans;
(qvi) Paymake or rescind any material election relating to Taxes, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), settle any claim, liability action, suit, litigation, proceeding, arbitration, investigation, audit or obligation controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(absolutevii) transfer or license to any Person or otherwise extend, accruedmaterially amend or modify, asserted permit to lapse or unasserted, contingent fail to preserve any material Company Registered IP or otherwise), other than the payment, discharge or satisfaction Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business of liabilities reflected consistent with past practice), or reserved against in the Current Balance Sheetdisclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(rviii) Make terminate, or change waive or assign any material election right under, any Company Material Contract or enter into any Contract that would be a Company Material Contract, in any case outside of the ordinary course of business;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of Taxescoverage substantially similar to that which is currently in effect;
(xii) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any material claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $500,000 (individually or in the aggregate);
(xiv) close or materially reduce its activities or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xvi) make capital expenditures in excess of $500,000 (individually for any project (or set of related projects) or $750,000 in the aggregate);
(xvii) adopt a plan of complete or change partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any accounting method in respect material portion of Taxesits properties, assets or rights outside of the ordinary course of business; or
(i) other than the Voting Agreement, enter into any closing agreement, settle any claim understanding or assessment in arrangement with respect to the voting of Taxes, or consent to any extension or waiver equity securities of the limitation period applicable to any claim or assessment in respect of TaxesCompany;
(sii) Enter into take any strategic alliance action that would reasonably be expected to significantly delay or joint marketing arrangement or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(tiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the Purchasers shall otherwise consent in writing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement (in accordance with its terms) or the Closing, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this AgreementAgreement or any other Transaction Document, or as set forth on Schedule IV.18(a), or as required by applicable law, the Company shall, and shall notcause its Subsidiaries to, without the prior written consent of NEON:
(ai) Enter into any commitment or transaction not conduct their respective businesses, in all material respects, in the ordinary course of business and (ii) use commercially reasonable efforts to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors and officers, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice practice.
(b) Without limiting the generality of Section IV.18(a) and except as contemplated by this Agreement or any commitment other Transaction Document, or transaction as set forth on Schedule IV.18(b), or as required by applicable law, the Company shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its organizational or charter documents, except as required by applicable law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any type whatsoever involving individual expense of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) sub-divide, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 100,000 individually or $250,000 in the aggregate, and aggregate expense make a loan or advance to or investment in excess any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, liability or obligation of any Person, up to aggregate additional Indebtedness of the Contracts set forth or described in the Company Disclosure Schedule$500,000;
(fv) Commence terminate, waive or settle assign any litigationmaterial right under any material agreement to which it is a party;
(gvi) Declarefail to maintain its books, set aside or pay any dividends on or make any other distributions (whether accounts and records in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except all material respects in the ordinary course of business and consistent with past practices;
(lvii) Incur establish any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, Subsidiary or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course new line of business;
(qviii) Payfail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are as of the date of this Agreement currently in effect;
(ix) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP;
(x) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Subsidiary), or otherwise pay, discharge or satisfysatisfy any Actions, in an liabilities or obligations;
(xi) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets;
(xii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the transactions contemplated hereby);
(xiii) voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $30,000 (in any one case) 100,000 individually or $50,000 (250,000 in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(rxiv) Make sell, lease, license, transfer, exchange or change swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material election in respect portion of Taxesits properties, adopt assets or change any accounting method in respect of Taxes, rights;
(xv) enter into any closing agreement, settle any claim understanding or assessment in arrangement with respect to the voting of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesits equity securities;
(sxvi) Enter into enter into, amend, renew, waive or terminate (other than terminations in accordance with their terms) any strategic alliance transaction or joint marketing arrangement agreement with any officer, director, manager, employee, consultant or agreementsecurity holder of the Company or any of their Affiliates;
(xvii) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Required Approvals; or
(txviii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the ClosingClosing (the “Interim Period”), except as expressly contemplated by this Agreement the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its businesses, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and any (iii) take all reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, its business organization, to keep available the Company. Except services of its managers, directors, officers, employees and consultants, to maintain, in all material respects, its existing relationships with all Top Customers and Top Suppliers, and to preserve the possession, control and condition of its material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 6.2(a), and except as contemplated by the terms of this Agreement, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any person or entity any rights to the Company Intellectual Propertyof its securities;
(div) Enter into or amend any Contract pursuant to which any other party is granted marketingincur, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend create, assume, prepay or otherwise modify become liable for any Indebtedness (directly, contingently or agree to do sootherwise), except in outside the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 10,000 (other than increases under existing equipment leases individually or in the ordinary course of business) aggregate), make a loan or advance to or investment in any third party, or guarantee or endorse any such indebtedness Indebtedness, Liability or issue or sell obligation of any debt securities or guarantee any debt securities of othersPerson;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent, or make or commit to make any bonus payment (qwhether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any of the Company Registered IP, Company Licensed IP or other Company IP, or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract outside of the ordinary course of business or enter into any closing agreementContract (A) involving amounts reasonably expected to exceed $10,000 per year or $50,000 in the aggregate, settle any claim (B) that would be a Company Material Contract or assessment in respect (C) with a term longer than one year that cannot be terminated without payment of Taxes, a material penalty and upon notice of sixty days or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesless;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are currently in effect;
(xii) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $10,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $10,000 (individually for any project (or set of related projects) or $25,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $10,000 individually or $25,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During The Company agrees that during the period from the date of this Agreement to the Effective Time (unless Parent shall have provided its prior written consent and continuing until the earlier of the termination of except as otherwise expressly required or permitted by this Agreement or the Closingas set forth on Schedule 7.1), the business and operations of the Company agrees (except to the extent that NEON and its Subsidiaries shall otherwise consent in writing), to carry on the Company's business be conducted in the usual, regular usual and ordinary course of business consistent with past practices, and the Company shall use all commercially reasonable efforts, with no less diligence and effort than would be applied in substantially the same manner as heretofore conductedabsence of this Agreement, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to (a) preserve intact the Company's its current business organizations, material insurance policies and Trade Rights and goodwill; (b) preserve its present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributorsofficers, licensorsemployees, lessors, licensees, wholesalers, and others having other Persons with which it has significant business dealings relations; and (c) comply in all material respects with itall Laws applicable to it or any of its properties, all with assets or business. Without limiting the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business generality of the Companyforegoing, and any material event involving the Company. Except except as expressly contemplated required by applicable Law, as otherwise permitted by this AgreementAgreement or as set forth in Schedule 7.1(a), between the date of this Agreement and the Effective Time, neither the Company shall notnor any of its Subsidiaries will, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquireParent, directly or indirectly, do, or commit to do, any shares of the capital stock of the Company;following:
(hi) Issueissue, deliver, sell, dispose of, grant, deliver pledge or sell otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition, grant, delivery pledge or sale ofother encumbrance of (a) any shares of capital stock of any class or any other ownership interest of the Company or any Subsidiary (including the Shares), any Voting Debt or other voting securities, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock or any other ownership interest of the Company or any Subsidiary, any Voting Debt or other voting securities, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or propose acquire any shares of capital stock or any other ownership interest of the purchase ofCompany or any Subsidiary or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock or securities convertible intoany other ownership interest (including, without limitation, any stock appreciation rights, phantom stock, phantom stock rights, or subscriptionsstock-based performance units) of the Company or any Subsidiary (except for the issuance of a maximum of 1,444,757 Shares issuable pursuant to options outstanding on the date of this Agreement under the Option Plans), rightsor (b) any other securities of the Company or any Subsidiary in respect of, warrants in lieu of, or options in substitution for, Shares outstanding on the date hereof;
(ii) reclassify, split (including a reverse split), recapitalize, subdivide or redeem, purchase or otherwise acquire (except to the extent required by the Company's stock-based Employee Benefit Plans), or propose to reclassify, split, recapitalize, subdivide, redeem, purchase or otherwise acquire, any outstanding Shares or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible its securities;
(iiii) Cause declare, set aside for payment or permit pay any dividend or other distribution (whether payable in cash, stock, property or otherwise), or make any other actual, constructive or deemed distribution in respect of any Shares or capital stock or otherwise make any payments to stockholders in their capacity as such, other than the declaration and payment of regular quarterly cash dividends in amounts and at times consistent with past practice and except for dividends by a wholly owned subsidiary of the Company;
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(v) adopt any amendments to its Certificate certificate of Incorporation incorporation or Bylawsbylaws (or comparable organizational documents) or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary;
(jA) Acquire or agree to acquire (including, without limitation, by merging or consolidating withmerger, consolidation, or by purchasing any acquisition of stock or assets or equity securities of, or by any other manner, any business or combination) any corporation, partnership, association other Person or other business organization or any division thereof;
, any real property or any material amount of assets; (kB) Sellincur any indebtedness for borrowed money or issue any debt securities or assume, leaseguarantee or endorse, license or otherwise dispose become responsible for, the obligations of any of its properties Person, or assetsmake any loans or advances or capital contributions, except in the ordinary course of business and consistent with past practices;
practice; (lC) Incur enter into, amend or modify or terminate any indebtedness for borrowed money in excess of $30,000 derivative, swap or hedging arrangement or Contract; (other than increases under existing equipment leases in the ordinary course of businessD) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable Contract other than in the ordinary course of business;
business and consistent with past practice; (qE) Payauthorize, discharge or satisfymake any commitment with respect to, in an amount any single capital expenditure which is in excess of $30,000 (in any one case) 100,000 or $50,000 (capital expenditures which are, in the aggregate, in excess of $200,000 for the Company and the Subsidiaries taken as a whole; or (F) enter into or amend or modify any Contract with respect to any matter set forth in this Section 7.1(vi), any claimexcept, liability with respect to matters described in clauses (B) or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction D) of this Section 7.1(vi) in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetand consistent with past practice;
(rvii) Make sell, lease or dispose of any assets or securities which are material to the Company and its Subsidiaries, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction, in each case outside the ordinary course of business consistent with past practice other than transactions between a wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company;
(viii) hire or terminate any employee except in the ordinary course of business consistent with past practice or increase the salary, bonus or other compensation payable or to become payable or the benefits (including fringe benefits or perquisites) provided to its current or former directors, officers, other employees or consultants, except for increases in the ordinary course of business and consistent with past practice in salaries or wages of employees of the Company or any Subsidiary who are not directors or officers of the Company, as provided in any existing agreements with current or former directors, officers, other employees or consultants of the Company or its Subsidiaries or as required by any collective bargaining agreement or applicable Law; grant or increase any bonus, incentive compensation, retention payments, severance change-in-control or termination pay to, or enter into, amend or modify any employment, consulting, change-in-control or severance agreement with, any current or former director, officer, other employee or consultant of the Company or of any Subsidiary, except as provided in any existing agreements with current or former directors, officers, other employees or consultants of the Company or its Subsidiaries or as required by any collective bargaining agreement or applicable Law; or establish, adopt, enter into, amend or modify (including any amendment or modification that increases or accelerates payment or requires any funding), except as required by Law, any collective bargaining or other Contract with a labor union, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, change-in-control, severance or other plan, program, agreement, trust, fund, policy or arrangement for the benefit of any current or former director, officer, other employee or consultant;
(ix) make any material Tax election, enter into any settlement or compromise of any material Tax liability, file any amended Tax Return with respect to any material Tax, change any material election in respect of Taxes, adopt or change any annual Tax accounting method in respect of Taxesperiod, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent agreement relating to any extension material Tax or waiver of the limitation period applicable surrender any right to any claim or assessment in respect of Taxesa material Tax refund;
(sx) Enter into except as may be required as a result of a change in Law or in generally accepted accounting principles or audit practices, change any strategic alliance of the financial or joint marketing arrangement tax accounting methods, practices or agreementprinciples used by it;
(xi) enter into, amend or modify any Contract with any officer or director of the Company or any stockholder of the Company holding five percent or more of the Company's outstanding Shares;
(xii) release any Person from, or waive any provision of, any standstill agreement to which it is a party (unless, and only to the limited extent and only for the limited purposes specified, expressly permitted by Section 7.2 of this Agreement) or any confidentiality agreement between it and another Person;
(xiii) take any action that is intended or is reasonably likely to result in (a) any of its representations or warranties set forth in this Agreement being or becoming untrue in any respect at any time prior to the Effective Time in any manner that would be reasonably likely to cause the conditions set forth in Annex A hereto or Article VIII of this Agreement to not be satisfied, or (b) a violation of any provision of this Agreement; or
(txiv) Takeauthorize, recommend, take, or propose to take, or agree to take in writing or otherwise otherwise, or enter into any Contract, agreement, commitment or arrangement to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderthis Section 7.1.
Appears in 1 contract
Conduct of Business of the Company. During The Company shall, and shall cause each of its Subsidiaries to, during the period from the date of this Agreement and continuing until the earlier of the termination of Effective Time, except as expressly contemplated by this Agreement or as required by applicable Law or with the Closingprior written consent of Parent, conduct its business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve substantially intact the Company's present its and its Subsidiaries’ business organization, to keep available the services of the Company's present its and its Subsidiaries’ current officers and key employees employees, to preserve its and preserve the Company's its Subsidiaries’ present relationships with customers, suppliers, distributors, licensors, licensees, licensees and others other Persons having business dealings relationships with it, all with . Without limiting the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business generality of the Companyforegoing, between the date of this Agreement and any material event involving the Company. Except Effective Time, except as otherwise expressly contemplated by this AgreementAgreement or as set forth on Section 6.01 of the Company Disclosure Letter or as required by applicable Law, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of NEON:Parent (which consent shall not be unreasonably withheld or delayed):
(a) Enter into any commitment amend or transaction not in the ordinary course propose to amend its certificate of business and consistent with past practice incorporation or any commitment by-laws (or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000other comparable organizational documents);
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(ci) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock Company Securities or issue or authorize the issuance of any other securities in respect ofCompany Subsidiary Securities, in lieu of or in substitution for shares of capital stock of the Company, or (ii) repurchase, redeem or otherwise acquire, directly or indirectlyoffer to repurchase, redeem or otherwise acquire, any shares of the capital stock of the Company;
Company Securities or Company Subsidiary Securities, (hiii) Issuedeclare, grantset aside or pay any dividend or distribution (whether in cash, deliver stock, property or sell or authorize or propose the issuance, grant, delivery or sale otherwise) in respect of, or purchase or propose enter into any Contract with respect to the purchase voting of, any shares of its capital stock (other than dividends from its direct or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securitiesindirect wholly-owned Subsidiary);
(ic) Cause issue, sell, pledge, dispose of, transfer, modify or permit encumber any amendments to Company Securities or Company Subsidiary Securities, other than the issuance of shares of Company Common Stock upon the exercise or settlement of any Company Equity Award outstanding under Company Stock Plans as of the date of this Agreement in accordance with its Certificate of Incorporation or Bylawsterms;
(jd) Acquire or agree to acquire except as required by merging or consolidating with, or by purchasing any assets or equity securities of, applicable Law or by any other mannerCompany Employee Plan or written Contract in effect as of the date of this Agreement that has been disclosed or made available to Parent, take or permit to be taken any business action or any corporation, partnership, association commitment to (i) increase the compensation payable or other business organization that could become payable by the Company or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties Subsidiaries to directors, officers or assetsemployees, except other than increases in compensation to employees who are not directors or officers made in the ordinary course of business and consistent with past practicespractice, or grant, award, pay or accelerate any bonus or severance or termination pay to any directors, officers or employees of the Company or any of its Subsidiaries (ii) enter into or amend or terminate any employment, severance, retention or change in control agreement with any of its past or present directors, officers or employees, or (iii) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights or payments under any Company Employee Plans or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Employee Plan, other than contributions required by Law or the terms of such Company Employee Plans which are made in the ordinary course of business consistent with past practice; (iv) hire (directly or indirectly) any employee or independent contractor, other than (A) a non-executive employee having total annual compensation not in excess of $80,000 hired in the ordinary course of business consistent with past practice or (B) ophthalmologists or optometrists retained in the ordinary course of business consistent with past practice;
(le) Incur acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person, in any transaction or series of transactions, in excess of $100,000 in the aggregate;
(i) transfer, license, sell, lease, sublease, subject to any Lien (other than Permitted Liens) or otherwise dispose of any assets (whether by way of merger, consolidation, sale of stock or assets, or otherwise), including the capital stock or other equity interests in any Subsidiary of the Company, provided that the foregoing shall not prohibit the Company and its Subsidiaries from transferring, licensing, selling, leasing or disposing of excess or obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice, or (ii) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(g) repurchase, prepay or incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of othersanother Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practice;
(h) enter into any new line of business;
(i) make or agree to make any new capital expenditure in excess of $50,000 or that, in the aggregate, are in excess of $100,000, other than (i) as contemplated by the Company’s capital expenditure budget, which has been provided or made available to Parent, or (ii) in the ordinary course of business consistent with past practice;
(j) enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to material Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Company Material Contract or Lease with respect to material Real Estate hereunder;
(k) institute, settle or compromise any Legal Actions pending or threatened before any arbitrator, court or other Governmental Entity involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding $250,000 in the aggregate, other than (i) any Legal Action brought against Parent or Merger Sub arising out of a breach or alleged breach of this Agreement by Parent or Merger Sub, and (ii) the settlement of claims, liabilities or obligations reserved against on the most recent balance sheet of the Company included in the Company SEC Documents; provided that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company’s business;
(l) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law;
(m) Grant (i) adopt or change any loans material method of Tax accounting, (ii) make or change any material Tax election, (iii) change any annual accounting period, (iv) settle or compromise any material Tax liability, suit, claim, action, investigation, proceeding or audit for an amount in excess of amounts reserved, or (v) enter into any closing agreement with respect to others or purchase debt securities any material Tax liability for an amount in excess of others or amend amounts reserved (it being agreed and understood that the terms of Company does not make any outstanding loan agreementcovenants pursuant to this Section 6.01 related to Taxes, except as provided in this clause (m));
(n) Grant enter into any severance material agreement, agreement in principle, letter of intent, memorandum of understanding or termination pay (i) similar Contract with respect to any director joint venture, strategic partnership or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereofalliance;
(o) Adopt or amend except in connection with actions permitted by Section 6.04 hereof, take any Employee Planaction to exempt any Person from, or enter into make any Employee Agreementacquisition of securities of the Company by any Person not subject to, pay any state takeover statute or agree similar statute or regulation that applies to pay Company with respect to a Takeover Proposal or otherwise, including the restrictions on “business combinations” set forth in Section 203 of the DGCL, except for Parent, Merger Sub or any special bonus of their respective Subsidiaries or special remuneration to any director or employeeAffiliates, or increase the salaries or wage rates of its employeestransactions contemplated by this Agreement;
(p) Revalue dispose of, permit to lapse, abandon, encumber, convey title (in whole or in part), exclusively license or grant any of its assetsright or other licenses to material Company IP, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness consistent with past practice;
(qi) Paymake any loan to any of its directors, discharge officers or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), employees other than the payment, discharge or satisfaction advances on expenses made in the ordinary course of business of liabilities reflected or reserved against consistent with past practice or, (ii) other than in the Current Balance Sheetordinary course of business consistent with past practice, enter into any other transaction with any of its directors, officers or employees;
(r) Make cancel or change terminate any material election in respect of Taxes, adopt insurance policy naming it as a beneficiary or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesa loss payable payee without obtaining comparable substitute insurance coverage;
(s) Enter into any strategic alliance incur unreasonable transaction fees in connection with the Merger or joint marketing arrangement the other transactions contemplated hereby, or agreement; or
(t) Take, agree or agree in writing or otherwise commit to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing.
Appears in 1 contract
Samples: Merger Agreement (Lca Vision Inc)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with the CompanyBusiness Plan, (ii) comply with all Laws applicable to the Target Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2 or as disclosed on Schedule 5.2(b), during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction not with a third Person with respect to such securities; provided that neither the exercise or settlement of any Company Options or Company RSUs or grants of Company Options or Company RSUs under the Company Equity Plan nor the conversion of any Company Convertible Securities shall require the consent of Purchaser;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $50,000,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business and consistent with past practice business), or guarantee or endorse any commitment Indebtedness, Liability or transaction obligation of any type whatsoever involving individual expense Person in excess of $30,000 and aggregate expense 500,000 individually or $1,000,000 in excess of $100,000the aggregate;
(bv) Enter into any agreement with respect to increase the Company Intellectual Property with any person wages, salaries or entity or with respect to the intellectual property compensation of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any its Key Employees other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except than in the ordinary course of business, or violate consistent with the terms ofBusiness Plan, and in any of the Contracts set forth or described event not in the Company Disclosure Schedule;
any individual case by more than five percent (f) Commence or settle any litigation;
(g) Declare5%), set aside or pay any dividends on or make or commit to make any other distributions bonus payment (whether in cash, stock property or propertysecurities other than Company Options or Company RSUs) to any Key Employee, or materially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any of its capital stockcurrent consultant, manager director or splitKey Employee, combine or reclassify any of its capital stock or issue or authorize in each case other than as required by applicable Law, pursuant to the issuance terms of any other securities in respect of, in lieu of Company Benefit Plans or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practicesthe Business Plan;
(lvi) Incur make or rescind any indebtedness material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for borrowed money refund, or make any material change in excess its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of $30,000 (other than increases under existing equipment leases Company IP to Target Company customers in the ordinary course of business) business consistent with past practice), or guarantee disclose to any such indebtedness or issue or sell Person who has not entered into a confidentiality agreement any debt securities or guarantee any debt securities of othersTrade Secrets;
(mviii) Grant terminate, or waive or assign any loans to others or purchase debt securities of others or amend the terms of material right under, any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, Company Material Contract or enter into any Employee AgreementContract that would be a Company Material Contract, pay or agree to pay in any special bonus or special remuneration to any director or employee, or increase case outside of the salaries or wage rates ordinary course of its employeesbusiness;
(pix) Revalue any of fail to maintain its assetsbooks, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than and records in all material respects in the ordinary course of business;
(qx) Payestablish any Subsidiary or enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, discharge operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or satisfymake any material change in accounting methods, in an amount principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $30,000 100,000 (in any one case) individually or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the paymentotherwise pay, discharge or satisfaction satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other Key Employee reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xvi) make capital expenditures in excess of $500,000 (individually for any project (or set of related projects) or $1,000,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xix) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xx) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxi) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rxxii) Make enter into, amend, waive or change terminate (other than terminations in accordance with their terms) any material election transaction with any Related Person (other than compensation and benefits and advancement of expenses, in respect each case, provided in the ordinary course of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementbusiness consistent with past practice); or
(txxiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer to split, combine, recapitalize or reclassify any person of its shares or entity any rights to the Company Intellectual Property;
(d) Enter into other equity interests or amend any Contract pursuant to which issue any other party is granted marketing, distribution securities in respect thereof or similar rights of any type pay or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside any dividend or pay any dividends on or make any other distributions distribution (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iiv) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating withincur, or by purchasing any assets or equity securities ofcreate, or by any other mannerassume, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license prepay or otherwise dispose of become liable for any of its properties Indebtedness (directly, contingently or assets, except in the ordinary course of business and consistent with past practices;
(lotherwise) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases 5,000,000 individually or $10,000,000 in the ordinary course of business) aggregate, make a loan or advance to or investment in any third party or guarantee or endorse any such indebtedness Indebtedness, Liability or issue obligation of any Person in excess of $5,000,000 individually or sell any debt securities or guarantee any debt securities of others$10,000,000 in the aggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than ten percent (q10%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company IP Licenses or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force material insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $2,000,000 (individually or $5,000,000 in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $5,000,000 (individually for any project (or set of related projects) or $10,000,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) not referenced in another subsection of this Section 5.2(b) in excess of $5,000,000 individually or $10,000,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company other than this Agreement or agreementany of the Ancillary Documents;
(xxi) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions; provided, that any actions described reasonably taken in Sections 5.1(a)-(s) above, or any other action that would prevent good faith by the Company from performing or cause its Subsidiaries to the Company extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to perform its covenants hereunderconstitute a breach of the requirements set forth under this Section 5.2. The Company shall notify the Purchaser in writing of any such actions taken in accordance with the foregoing proviso and shall use commercially reasonable efforts to mitigate any negative effects of such actions on the business of the Target Companies, in consultation with the Purchaser whenever practicable.
Appears in 1 contract
Samples: Merger Agreement (Pono Capital Corp)
Conduct of Business of the Company. During Except for matters set forth in Section 5.01 of the period Company Disclosure Letter or otherwise expressly permitted or required by this Agreement or required by applicable Law, from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall, and shall otherwise consent in writing)cause each Company Subsidiary to, to carry on the Company's conduct its business in the usual, regular and ordinary course in substantially the same manner as heretofore conductedpreviously conducted and, to pay the debts and Taxes of the Company when dueextent consistent therewith, to pay or perform other obligations when due, and to use its best all reasonable efforts to preserve intact the Company's present its current business organization, use all reasonable efforts to keep available the services of the Company's present its current officers and key employees and preserve the Company's use all reasonable efforts to keep its present relationships with customers, suppliers, distributors, licensors, licensees, distributors and others having material business dealings with it. In addition, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not except for matters set forth in the ordinary course of business Section 5.01 of the Company, and any material event involving the Company. Except as Company Disclosure Letter or otherwise expressly contemplated permitted or required by this AgreementAgreement or required by applicable Law, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following without the prior written consent of NEON:Parent (which consent shall not be unreasonably withheld or delayed):
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bi) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for acquisitions of shares of capital stock of the Company in connection with withholding to satisfy tax obligations with respect to the exercise or vesting of equity awards, acquisitions of shares of capital stock of the Company in connection with the forfeiture of equity awards, or acquisitions of shares of capital stock of the Company in connection with the net exercise of equity awards, in each case outstanding on the date of this Agreement and in accordance with their terms as in effect on the date of this Agreement;
(b) issue, deliver, sell or grant (i) any shares of its capital stock, (ii) any other securities, including any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any shares of capital stock of the Company, or repurchase(iii) any “phantom” stock, redeem “phantom” stock rights, stock appreciation rights, restricted stock units, stock-based performance units or otherwise acquire, directly other rights that are linked to the value of Company Common Stock or indirectly, any shares the value of the capital stock Company or any part thereof, other than the issuance of Company Common Stock (and associated Company Rights) upon the Companyexercise of Company Stock Options or Company SARs or upon the vesting of Company RSUs, in each case outstanding on the date of this Agreement and in accordance with their terms as in effect on the date of this Agreement;
(hc) Issueamend its certificate of incorporation, grant, deliver by-laws or sell or authorize or propose the issuance, grant, delivery or sale ofother comparable organizational documents, or purchase adopt a plan or propose the purchase of, any shares agreement of its capital stock complete or securities convertible into, partial liquidation or subscriptions, rights, warrants dissolution;
(d) acquire or options agree to acquire, in a single transaction or other agreements or commitments a series of any character obligating it to issue or purchase any such shares or other convertible securities;
related transactions, (i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire whether by merging or consolidating with, or by purchasing any an equity interest in or a portion of the assets or equity securities of, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person, or (ii) any assets that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole;
(e) (i) adopt, enter into, establish, terminate, amend or modify any collective bargaining agreement, Company Benefit Plan or Company Benefit Agreement, (ii) increase in any manner the compensation or benefits of, or pay any bonus to, or grant any loan to, any Company Personnel, except for increases in base salary and cash bonuses in the ordinary course of business consistent with past practice, (iii) pay or provide to any Company Personnel any material compensation or benefit not provided for under a Company Benefit Plan or Company Benefit Agreement as in effect on the date of this Agreement, other than the payment of base cash compensation in the ordinary course of business consistent with past practice, (iv) grant or amend any awards under any Company Benefit Plan (including the grant or amendment of any equity or equity-based or related compensation), except as otherwise permitted pursuant to Section 5.01(b), or remove or modify existing restrictions in any Company Benefit Plan or Company Benefit Agreement or awards made thereunder, (v) grant any severance, separation, change in control, retention, termination or similar compensation or benefits to, or increase in any manner the severance, separation, change in control, retention, termination or similar compensation or benefits of, any Company Personnel, other than by operation of the terms of any Company Benefit Plan or Company Benefit Agreement as in effect on the date of this Agreement, (vi) enter into any trust, annuity or insurance Contract or similar agreement with respect to, or take any action to fund or in any other way secure the payment of compensation or benefits under, any Company Benefit Plan or Company Benefit Agreement, (vii) take any action to accelerate the time of payment or vesting of any compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (viii) make any material determination under any Company Benefit Plan or Company Benefit Agreement that is inconsistent with the ordinary course of business or past practice or (ix) hire any executive officers or promote any employee into an executive officer position, in each case except as required to ensure that any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement is not out of compliance with applicable Law or as required to comply with any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement or as specifically required pursuant to this Agreement (and, in each case, only to the extent the Compensation Committee of the Company Board has duly approved (by vote of members of the Compensation Committee who have been determined by the Company Board to be “independent directors” within the meaning of Rule 14d-10(d)(2) under the Exchange Act at the time of such approval) the arrangements resulting from such action as an Employment Compensation Arrangement and taken all other actions necessary to satisfy the requirements of the non-exclusive safe harbor under Rule 14d-10(d)(2) under the Exchange Act with respect to such arrangements); provided that the foregoing clauses (i)-(ix) shall not restrict the Company or any of the Company Subsidiaries from entering into or making available to newly hired non-executive Company Personnel or to non-executive Company Personnel, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including incentive grants) that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions, except that the amount of any incentive grants shall be prorated based on a reasonable estimate of the amount of time from the date of grant through the expected date of completion of the Offer;
(f) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except as may be required (i) by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by applicable Law, including Regulation S-X under the Securities Act;
(g) sell, lease (as lessor), license or otherwise dispose of (including through any “spin off”), or pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien), any properties or assets that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except sales or other dispositions of inventory and excess or obsolete assets in the ordinary course of business consistent with past practice;
(h) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in (A) the Company or any direct or indirect wholly owned subsidiary of the Company and (B) any joint venture of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice;
(i) other than in accordance with the Company’s 2009 capital expenditure budget set forth in Section 5.01(i) of the Company Disclosure Letter, make or agree to make any capital expenditure or expenditures that in the aggregate are in excess of $250,000;
(j) except as required by Law or as otherwise is in the ordinary course of business consistent with past practice, make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Return or file any claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(k) Sellwaive, leaserelease, assign, discharge, settle or compromise any pending or threatened claim, action, litigation, arbitration or proceeding, other than any compromises, settlements or agreements that involve only the payment of monetary damages (net of insurance) not in excess of $100,000 individually or $300,000 in the aggregate;
(l) subject to the Company’s rights under Sections 5.04 and 8.05, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party;
(m) engage in any business other than the business substantially as presently conducted by the Company and the Company Subsidiaries;
(n) enter into, modify or amend in a manner that is materially adverse to the Company, or extend or terminate, or waive, release or assign any material rights or claims under any Specified Contract (other than any expiration of such Specified Contract in accordance with its terms) or any Contract that, if existing on the date hereof, would have been a Specified Contract;
(o) sell, transfer, assign, license or otherwise dispose of any right, title or interest in any Intellectual Property owned by or licensed to the Company or any Company Subsidiary that is material to the business of its properties or assetsthe Company and the Company Subsidiaries, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plantaken as a whole, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness consistent with past practice;
(qp) Pay, discharge or satisfy, in an amount in excess of $30,000 (engage in any one case) discounting, rebate, promotional or $50,000 (in other special incentive arrangements with respect to the aggregate), sale of any claim, liability of the Company’s or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)the Company Subsidiaries’ finished products, other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementconsistent with past practice; or
(tq) Takeauthorize, commit or agree in writing or otherwise to take, take any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During Except as contemplated by this Agreement, during the period from the date of this Agreement and continuing until hereof to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except will conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent that NEON shall otherwise consent in writing)consistent therewith, to carry on the Company's business with no less diligence and effort than would be applied in the usualabsence of this Agreement, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best commercially reasonable efforts to preserve intact the Company's present its current business organizationorganizations, keep available the services service of the Company's present its current officers and key employees and employees, preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, suppliers and others having business dealings with it, all with it and preserve the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the CompanyCompany through the Effective Time. Without limiting the generality of the foregoing, and any material event involving except as otherwise expressly provided in this Agreement or in Schedule 4.1, prior to the Company. Except as expressly contemplated by this AgreementEffective Time, the Company shall will not, without the prior written consent of NEONPCA:
(a) Enter into any commitment amend its certificate of incorporation or transaction not bylaws (or other similar organizational or governing instruments), as each such document is in effect on the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000date hereof;
(b) Enter into authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property stock of any person class or entity;any other securities convertible into or exchangeable for any stock or any equity equivalents (including, any stock options or stock appreciation rights), except for: (i) the issuance or sale of Shares pursuant to outstanding Company Stock Options and (ii) the authorization for issuance(s) after the Closing of the Merger of (x) up to 8,000,000 shares of PCA Common Stock at a price of $0.30 per share and (y) warrants exercisable for up to an additional 4,000,000 shares of PCA Common Stock to certain prospective financial investors (the "INVESTORS")
(c) Transfer to (i) split, combine or reclassify any person or entity any rights to the Company Intellectual Property;
shares of its capital stock; (dii) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on dividend or make any other distributions distribution (whether in cash, stock or propertyproperty or any combination thereof) in respect of any of its capital stock; (iii) make any other actual, constructive or split, combine or reclassify deemed distribution in respect of any shares of its capital stock or issue otherwise make any payments to stockholders in their capacity as such; or authorize the issuance of any other securities in respect of(iv) redeem, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem repurchase or otherwise acquire, directly or indirectly, any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; (iii) make any loans, advances or capital contributions to, or investments in, any other person (other than customary loans or advances to employees, consultants or contractors in the ordinary and usual course of business consistent with past practice and in amounts not material to the maker of such loan or advance); (iv) pledge or otherwise encumber shares of the capital stock of the Company; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than as disclosed in the schedules hereto and Permitted Liens;
(i) except as may be required by Law or as contemplated by this Agreement, enter into, adopt or amend or terminate (partially or completely) any Benefit Plan, Employee Arrangement (including, the repricing of any stock options or the acceleration or vesting of any stock options), stock appreciation right, restricted stock, performance unit, stock equivalent or stock purchase agreement for the benefit or welfare of any director, officer, employee, consultant or contractor in any manner, (ii) except as required under existing agreements, increase in any manner the compensation or fringe benefits of any director, officer, employee, consultant or contractor or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, the granting of stock appreciation rights or performance units) or grant any completion bonuses or change of control payments in respect of the Merger or that will be affected thereby; or (iii) hire, promote or change the classification or status in respect of any employee or individual; provided, however, that PCA shall not unreasonably withhold or delay any consent sought to hire, promote or change the classification or status of any employee or individual.
(g) acquire, sell, lease or dispose of any assets outside the ordinary and usual course of business consistent with past practice or any assets which in the aggregate are material to the Company, enter into any commitment or transaction outside the ordinary and usual course of business consistent with past practice or grant any exclusive distribution rights, except for any rights that may be sold or granted in connection with the proposed transactions with the Investors;
(h) Issueacquire (by merger, grant, deliver consolidation or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares acquisition of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iassets) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association partnership or other business organization or division thereofthereof or any equity interest therein;
(i) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(j) take any action (including, any action otherwise permitted by this Section 4.2) that would prevent or impede the Merger from qualifying as a "reorganization" under Section 368(a) of the Code;
(k) Sellfail to comply in any material respect with any Law applicable to the Company or its assets which would reasonably be expected to, lease, license individually or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practicesaggregate, have a Material Adverse Effect on the Company;
(l) Incur dispose of or permit to lapse any indebtedness for borrowed money rights to the use of any patent, trademark, trade name, copyright or other intangible asset that is material to the Company, or dispose of or disclose to any Person any trade secret, formula, process or know-how not theretofore a matter of public knowledge unless, in excess respect of $30,000 (other than increases under existing equipment leases disclosure, such Person has executed a confidentiality agreement in form acceptable to the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersCompany;
(m) Grant any loans to others sell or purchase debt securities of others or amend the terms dispose of any outstanding loan agreementCompany Intellectual Property;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue change any of its assetsthe banking or safe deposit arrangements described in Section 3.21 hereto, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than except in the ordinary course of business;
(qo) Payfail to maintain its books, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (accounts and records in the aggregate)usual, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the regular and ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementmanner on a basis consistent with prior years; or
(tp) Taketake, propose to take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(sSection 4.1(a) above, through Section 4.1(o) or any other action that which would prevent make any of the representations or warranties of the Company from performing contained in this Agreement untrue, incomplete or cause the Company not to perform its covenants hereunderincorrect.
Appears in 1 contract
Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as contemplated by or in connection with this Agreement or the Closingtransactions contemplated hereby, as required by any Legal Requirement, as disclosed on Section 6.01 of the Disclosure Schedule or as consented to by Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company agrees shall, and shall cause each of its Subsidiaries to:
(except to a) conduct the extent that NEON shall otherwise consent in writing), to carry on the Company's business Business only in the usual, regular Ordinary Course of Business and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts Commercially Reasonable Efforts to preserve intact the Company's its present business organization, keep available the services of the Company's present its executive officers and key employees and preserve the Company's its relationships with customers, suppliersclients, distributors, licensors, licensees, suppliers and others having material business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into not pay any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitydividends, other than intercompany dividends;
(c) Transfer to any person or entity any rights to the Company Intellectual Propertynot amend its Organizational Documents;
(d) Enter into not merge or amend any Contract pursuant to which any other party is granted marketingconsolidate with, distribution or similar rights of any type or scope with respect to any products or technology purchase substantially all of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale assets of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to otherwise acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(ke) Sellexcept as set forth in Section 3.02(d), leasenot repurchase, license redeem or otherwise dispose of acquire any of its properties or assets, except in the ordinary course of business and consistent with past practicesEquity Interests;
(lf) Incur not issue or sell any indebtedness for borrowed money in excess Equity Interests (except pursuant to the exercise of $30,000 (other than increases under existing equipment leases in the ordinary course of businessCompany Stock-Based Securities) or any options, warrants or other similar rights, agreements or commitments of any kind to purchase any Equity Interests or any securities convertible into or exchangeable for any Equity Interests;
(g) not incur, assume, guarantee or prepay any such indebtedness, amend the terms relating to any indebtedness or issue or sell any debt securities securities, except for any such incurrence, assumption, guarantee or guarantee any debt securities prepayment of otherssuch indebtedness or amendments of the terms of such indebtedness in the Ordinary Course of Business;
(mh) Grant not mortgage, pledge or otherwise subject to any loans to others lien any of its material assets except (i) for Permitted Encumbrances or purchase debt securities (ii) in the Ordinary Course of others or amend the terms of any outstanding loan agreementBusiness;
(n) Grant any severance or termination pay (i) not pay any bonus or other incentive compensation to any director or officer or grant to any director or officer any other increase in compensation, except (i) for bonuses payable pursuant to any previously disclosed Company Plan, (ii) to any other employee except payments made in the Ordinary Course of Business or (iii) pursuant to standard the terms of any written agreements outstanding on agreement or commitment existing as of the date hereof;
(oj) Adopt not enter into, adopt or amend in any Employee Planmaterial respect any retention, change in control, collective bargaining, deferred compensation, retirement, bonus, profit-sharing, stock option or other equity, pension or welfare plan, any contract or other arrangement with an independent contractor or any agreement maintained for the benefit of any director or officer, except as required by any Legal Requirement;
(k) not change in any material respect its accounting practices, policies or principles, other than any such changes as may be required under GAAP;
(l) not sell or otherwise dispose of any assets, except in the Ordinary Course of Business;
(m) not enter into any Employee Agreementagreements, pay contracts or agree commitments for capital expenditures other than in the Ordinary Course of Business;
(n) not engage in any action that would constitute a violation of the FCPA or applicable local anticorruption laws;
(o) promptly disclose in writing to pay Parent and Merger Sub if, to the Company’s Knowledge, any special bonus of the foreign partners, third-party agents or special remuneration principals of the Company or its Subsidiaries becomes a foreign government official prior to any director or employee, or increase the salaries or wage rates of its employees;Closing Date; and
(p) Revalue any of its assets, including without limitation writing down the value of inventory not agree or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent commit to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, do any of the actions described foregoing referred to in Sections 5.1(a)-(sclauses (a) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder– (o).
Appears in 1 contract
Conduct of Business of the Company. During Except as expressly permitted or required by this Agreement, during the period from commencing on the date of this Agreement hereof and continuing until ending on the earlier of (x) the termination of Closing Date and (y) the date on which this Agreement or the Closing, is terminated pursuant to Section 8.1:
(a) Sellers shall cause the Company agrees (except and each of its Subsidiaries to conduct their respective operations in all material respects only in the ordinary course of business consistent with past practice, to the extent that NEON shall otherwise consent in writing)consistent therewith, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best their commercially reasonable efforts to preserve intact the Company's present their respective business organizationorganizations, keep available the services of the Company's present officers their current senior management as a group and key employees and preserve the Company's maintain satisfactory relationships with customers, suppliers, distributors, licensors, licenseesany Person having significant business relationships with the Company or any of such Subsidiaries, and others having business dealings with it, all to continue to make the Site Consolidation Capital Expenditures in a manner consistent with the goal scheduled plan for such expenditures previously provided to Purchaser; and
(b) Sellers shall cause the Company and each of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of its Subsidiaries not to effect any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, following without the prior written consent of NEON:Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(ai) Enter into make any commitment change in or transaction not in the ordinary course amendment to its articles of business and consistent with past practice association or any commitment its by-laws (or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000comparable governing documents);
(bii) Enter into any agreement with respect to the Company Intellectual Property with any person issue or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of businesssell, or violate the terms ofauthorize to issue or sell, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any shares of its capital stock or any other ownership interests, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any arrangement or Contract with respect to the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible intoany other ownership interests;
(iii) split, combine, redeem or reclassify, or subscriptions, rights, warrants purchase or options to otherwise acquire, any shares of its capital stock or its other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iiv) Cause make any material investment in, material acquisition of, or permit material capital contributions to, any amendments to its Certificate Person, except as set forth in Section 6.1(b)(iv) of Incorporation or Bylawsthe Sellers’ Disclosure Letter;
(jv) Acquire or agree to acquire by merging or consolidating withsell, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license lease or otherwise dispose of any of its properties or assetsassets that are material to its business, except in the ordinary course of business and consistent with past practicespractice or as set forth in Section 6.1(b)(v) of the Sellers’ Disclosure Letter;
(lvi) Incur amend in any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases material respect or terminate any Material Contract or enter into a Contract which, had it been entered into prior to the date hereof, would have been a Material Contract, except in the ordinary course of businessbusiness consistent with past practice or as set forth in Section 6.1(b)(vi) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersthe Sellers’ Disclosure Letter;
(mvii) Grant incur any Indebtedness, other than short-term indebtedness or letters of credit incurred in the ordinary course of business or borrowings under existing credit facilities or (y) make any loans or advances to others or purchase debt securities of others or amend the terms of any outstanding loan agreementother Person, other than routine advances to employees consistent with past practice;
(nviii) Grant any severance grant or termination pay (i) agree to grant to any director officer of the Company or officer any of its Subsidiaries any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend, agree to amend, or accelerate any accruals under any existing Employee Benefit Plans, except (w) as may be required under applicable Law, (x) pursuant to the Employee Benefit Plans or collective bargaining agreements of the Company or any of its Subsidiaries in effect on the date hereof, (y) in the ordinary course of business or (iiz) to any other employee except payments made pursuant to standard written employment, retention, change-of-control or similar type agreements outstanding in effect on the date hereof;
(oix) Adopt make or amend revoke any Employee Plan, material tax election not required by Law or enter into settle or compromise any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable material tax liability other than in the ordinary course of business;
(qx) Paymaterially change accounting policies or procedures, discharge except as required by Law or satisfy, in an amount in excess of $30,000 (in any one case) by IAS or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance SheetIFRS;
(rxi) Make subject to any Lien or change otherwise encumber or, except for Permitted Liens, permit or allow to be encumbered, any material election in respect of Taxes, adopt the properties or change assets (whether tangible or intangible) of the Company or any accounting method in respect of Taxes, its Subsidiaries;
(xii) enter into any closing agreementContract, settle any claim understanding or assessment in respect of Taxescommitment that restrains, restricts, limits or consent to any extension or waiver impedes the ability of the limitation period applicable Company or any Subsidiary to compete with or conduct any claim business or assessment line of business in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementgeographic area; or
(txiii) Takeauthorize any of, or commit or agree in writing or otherwise to taketake any of, any the foregoing actions. Notwithstanding the foregoing, Purchaser acknowledges and agrees that the Company and each Subsidiary of the actions described in Sections 5.1(a)-(s) above, Company shall be permitted to pay cash dividends or any make other action that would prevent the Company from performing or cause the Company not cash distributions to perform its covenants hereundertheir respective stockholders.
Appears in 1 contract
Conduct of Business of the Company. During Except for matters set forth in Section 5.01 of the period Company Disclosure Letter or otherwise expressly permitted or required by this Agreement or required by applicable Law, from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall, and shall otherwise consent in writing)cause each Company Subsidiary to, to carry on the Company's conduct its business in the usual, regular and ordinary course in substantially the same manner as heretofore conductedpreviously conducted and, to pay the debts and Taxes of the Company when dueextent consistent therewith, to pay or perform other obligations when due, and to use its best all reasonable efforts to preserve intact the Company's present its current business organization, use all reasonable efforts to keep available the services of the Company's present its current officers and key employees and preserve the Company's use all reasonable efforts to keep its present relationships with customers, suppliers, distributors, licensors, licensees, distributors and others having material business dealings with it. In addition, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not except for matters set forth in the ordinary course of business Section 5.01 of the Company, and any material event involving the Company. Except as Company Disclosure Letter or otherwise expressly contemplated permitted or required by this AgreementAgreement or required by applicable Law, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following without the prior written consent of NEON:Parent (which consent shall not be unreasonably withheld or delayed):
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bi) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company, Company or repurchase, redeem any Company Subsidiary or otherwise acquire, directly any other securities thereof or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase acquire any such shares or other convertible securities;
(i) Cause , except for acquisitions of shares of capital stock of the Company in connection with withholding to satisfy tax obligations with respect to the exercise or permit any amendments to its Certificate vesting of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating withequity awards, acquisitions of shares of capital stock of the Company in connection with the forfeiture of equity awards, or by purchasing any assets or acquisitions of shares of capital stock of the Company in connection with the net exercise of equity securities ofawards, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements each case outstanding on the date hereofof this Agreement and in accordance with their terms as in effect on the date of this Agreement;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Conduct of Business of the Company. During Except as expressly provided for herein, during the period from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingClosing Date, the Company agrees shall (except a) act and carry on its business only in the ordinary course of business and, to the extent that NEON shall otherwise consent in writing)consistent therewith, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to (b) use its best reasonable commercial efforts to preserve intact the Company's present its current business organizationorganizations, keep available the services of the Company's present its current key officers and key employees and preserve the Company's goodwill of those engaged in material business relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving to that end, without limiting the Company. Except as expressly contemplated by this Agreementgenerality of the foregoing, the Company shall not, without the prior written consent of NEONthe Purchaser:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bi) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on or make any other distributions (whether in cash, stock securities or other property) in respect of of, any of its capital stockoutstanding membership interest in the Company, or (ii) split, combine or reclassify any of its capital stock outstanding interest or issue or authorize the issuance of any other securities interest in respect of, in lieu of or in substitution for shares of capital stock of the Companymembership interest, or repurchase(iii) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of the capital stock of interest in the Company, except as provided in Section 5.7;
(hb) Issueamend its articles of organization, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquireoperating agreement, or other agreements comparable charter or commitments of any character obligating it to issue or purchase any such shares or other convertible securitiesorganizational documents;
(ic) Cause directly or permit indirectly acquire, make any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating withinvestment in, or by purchasing make any assets or equity securities of, or by any other mannercapital contributions to, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable person other than in the ordinary course of business;
(qd) Paydirectly or indirectly sell, discharge pledge or satisfyotherwise dispose of or encumber any of its properties or assets that are material to its business, in an amount in excess of $30,000 (in any one case) except for sales, pledges or $50,000 (in the aggregate), any claim, liability other dispositions or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction encumbrances in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetbusiness;
(re) Make (i) incur any indebtedness for borrowed money or change guarantee any material election such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to the Company, or (ii) make any loans or advances to any other person, other than to the Company and other than routine travel advances to employees or customer trade credit, except, in the case of clause (i), for borrowings under existing credit facilities described in the Company Disclosure Schedule in the ordinary course of business;
(f) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, except normal, regularly scheduled increases in respect of Taxesnon-officer employees;
(g) enter into or amend any employment, consulting, severance or similar agreement with any individual, except with respect to new hires of non-officer employees in the ordinary course of business;
(h) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, share exchange or other material reorganization or any agreement involving any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or any significant portions of the assets of the Company, in a single transaction or series of related transactions which would reasonably be expected to interfere with the completion of the Acquisition;
(i) make any tax election or settle or compromise any income tax liability of the Company involving on an individual basis more than $10,000;
(j) make any change in any method of accounting method or accounting practice or policy, except as required by any changes in respect of Taxes, GAAP;
(k) enter into any closing agreement, settle understanding or commitment that restrains, limits or impedes the Company's ability to compete with or conduct any claim business or assessment line of business, except for any such agreement, understanding or commitment entered into in respect the ordinary course of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesbusiness;
(sl) Enter into plan, announce, implement or effect any strategic alliance reduction in force, lay-off, early retirement program, severance program or joint marketing arrangement other program or agreementeffort concerning the termination of employment of employees of the Company;
(m) except as previously approved by the written unanimous consent of the members of the Company prior to the date hereof and as identified to the Purchaser prior to the date hereof, authorize or commit to make capital expenditures in excess of $10,000; or
(tn) Takeauthorize any of, or commit or agree to take any of, the foregoing actions in writing or otherwise to take, any respect of which it is restricted by the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderprovisions of this Section 5.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Return on Investment Corp)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyTarget Companies and their respective businesses, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents or as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 200,000 individually or $500,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 200,000 individually or $500,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or rescind inconsistent with past practice any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to a material amount of Taxes, file any material amended Tax Return or claim for refund, or change any Tax accounting period or method, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material election Company Registered IP, material Company Licensed IP or other material Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in respect the ordinary course of Taxesbusiness consistent with past practice), adopt or change disclose to any accounting method in respect of TaxesPerson who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any material claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $200,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $200,000 individually for any project (or set of related projects) or $500,000 in the aggregate (excluding, for the avoidance of doubt, incurring any Expenses);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability in excess of $200,000 individually or $500,000 in the aggregate (excluding the incurrence of any Expenses) other than pursuant to the terms of a Company Material Contract or Company Benefit Plan in existence as of the date of this Agreement or entered into in the ordinary course of business or in accordance with the terms of this Section 5.2;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other material liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions; provided, that any actions described reasonably taken in Sections 5.1(a)-(s) above, or any other action that would prevent good faith by the Company from performing or cause its Subsidiaries to the Company extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to perform its covenants hereunderconstitute a breach of the requirements set forth under this Section 5.2.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AMCI Acquisition Corp.)
Conduct of Business of the Company. During Except as permitted or contemplated by the Principal Documents or as required by applicable law or governmental regulation, during the period from the date of this Agreement and continuing until through the earlier of Effective Time (the termination of this Agreement “Pre-Closing Period”), without Parent’s prior consent (which consent shall not be unreasonably withheld, delayed or the Closingconditioned), the Company agrees shall use commercially reasonable efforts to: (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's i) conduct its business in the usual, regular and ordinary course in all material respects; (ii) preserve substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use intact its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships (iii) maintain existing goodwill with governmental authorities, customers, suppliers, distributorsand regulators, licensors(iv) maintain in effect all material governmental permits, licensees, franchises and others having business dealings with it, all with authorizations; and (v) retain the goal services of preserving unimpaired its current officers and key employees. Without limiting the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business generality of the Companyforegoing, and any material event involving the Company. Except except as expressly permitted or contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Schedule, or as required by applicable law or governmental regulation, during the Pre-Closing Period, the Company shall not, without the Parent’s prior written consent of NEON:(which consent shall not be unreasonably withheld, delayed or conditioned):
(a) Enter into issue, sell or deliver any commitment shares of Company Common Stock, Voting Preferred Stock, Preferred Stock or transaction not securities convertible into, or rights, warrants or options to acquire, any shares of Company Common Stock, Voting Preferred Stock or Preferred Stock;
(b) redeem, purchase or otherwise acquire any outstanding shares of Company Common Stock;
(c) split, combine, subdivide or reclassify any shares of Company Common Stock;
(d) sell, transfer or encumber any of its assets that, individually or in the aggregate, are material to the Company’s business as currently conducted (excluding any sales in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;business); sd-625790
(e) Amend prematurely terminate, materially amend or otherwise modify knowingly waive any material right under any Significant Contract;
(or agree to do so)f) make any capital expenditures, except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in if outside the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount not in excess of $30,000 (in any one case) or $50,000 (5,000,000 in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunder.
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
Conduct of Business of the Company. During (a) Unless Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.1 or the ClosingClosing (the “Interim Period”), except as expressly contemplated by this Agreement or as set forth on Schedule 5.2, the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, its business organization, to keep available the Company. Except services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this AgreementAgreement or as set forth on Schedule 5.2, during the Company shall notInterim Period, without the prior written consent of NEONPurchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 50,000 (individually or in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do soaggregate), except make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, Liability or obligation of any of the Contracts set forth or described in the Company Disclosure SchedulePerson;
(fv) Commence increase the wages, salaries or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any compensation of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of Company IP to the Company’s customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver Contract that would be a Company Material Contract outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are currently in effect;
(xii) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $50,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $50,000 (individually for any project (or set of related projects) or $150,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $50,000 individually or $150,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liability other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During Except as required by this Agreement or otherwise with the period prior written consent of the Purchaser, from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business will conduct its operations only in the usualordinary and usual course of business consistent with past practice and in compliance with all Laws and Orders, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to will use its commercially reasonable best efforts to preserve intact the Company's present business organization, organization of the Company to keep available the services of the Company's its present officers and key employees employees, and to preserve the Company's goodwill of those having business relationships with customersit, including, without limitation, maintaining satisfactory relationships with suppliers, distributors, licensorscustomers, licensees, licensors and others having business dealings relationships with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except Without limiting the generality of the foregoing, and except as expressly contemplated otherwise required by this Agreement, the Company shall notwill not prior to the Effective Time, directly or indirectly, without the prior written consent of NEONthe Purchaser:
(a) Enter (i) issue, reissue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, reissuance, sale, pledge, disposal of, grant or encumbrance of, (A) any shares of capital stock of any class of the Company, or securities convertible into any commitment such capital stock, or transaction not any rights, warrants or options to acquire any such convertible securities or capital stock, or any other ownership interest in the ordinary course Company, other than the issuance of business and consistent Shares in accordance with past practice the terms of the instruments governing such issuance on the date hereof, pursuant to the exercise of the Options outstanding on the date hereof, or (B) any commitment other securities in respect of, in lieu of, or transaction of in substitution for, Shares outstanding on the date hereof, or (ii) alter or make any type whatsoever involving individual expense other changes in excess of $30,000 and aggregate expense in excess of $100,000its capital structure;
(b) Enter into declare, set aside or pay any agreement with dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person class or entityseries of its capital stock;
(c) Transfer split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any person shares of its capital stock, or entity any rights to the Company Intellectual Propertyof its other securities;
(d) Enter into increase the compensation or amend fringe benefits payable or to become payable to its directors, officers or employees, or pay or award any Contract benefit not required by any existing plan or arrangement to any officer, director or employee (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units pursuant to which the Company's 1996 Employee Incentive Stock Option Plan or otherwise), or grant any other party is granted marketing, distribution severance or similar rights of any type or scope with respect termination pay to any products officer, director or technology other employee of the Company (other than as required by existing agreements or policies described in the Company Disclosure Schedule), or enter into any employment or severance agreement with, any director, officer or other employee of the Company or the Subsidiary;
(e) Amend establish, adopt, enter into, amend or otherwise modify (waive any performance or agree to do so)vesting criteria or accelerate vesting, except in the ordinary course exercisability or funding under any Employee Benefit Arrangement of businessany directors, officers or violate the terms of, any current or former employees of the Contracts set forth Company, except, in each case, to the extent required by applicable Law or required by the existing terms of any such Employee Benefit Arrangement as in effect prior to December 17, 2002 and described in the Company Disclosure Schedule;
(fe) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, take any of the foregoing actions described in Sections 5.1(a)-(s) above, prohibited under this Section 6.1 or take or agree to take any other action that would prevent the Company from performing cause any representation or cause the Company not warranty in this Agreement to perform its covenants hereunderbe or become untrue or incorrect.
Appears in 1 contract
Samples: Merger Agreement (Clary Corp)
Conduct of Business of the Company. During (a) Unless the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (except to the extent that NEON Purchaser shall otherwise consent in writingwriting (such consent not to be unreasonably withheld, conditioned or delayed), to carry on during the Company's business in the usualInterim Period, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly contemplated by this Agreement, or the Ancillary Documents, as required by applicable Law or as set forth on Schedule 5.2, the Company shall not(i) conduct its business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the Company and its business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement, or the Ancillary Documents, as required by applicable Law or as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 200,000 individually or $500,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 200,000 individually or $500,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
(q) Pay, discharge or satisfyconsistent with past practice, in an amount in excess of $30,000 the aggregate by more than ten percent (in any one case) or $50,000 (in the aggregate10%), or make or commit to make any claimbonus payment (whether in cash, liability property or obligation (absolutesecurities) to any employee, accruedor materially increase other benefits of employees generally, asserted or unassertedenter into, contingent establish, materially amend or otherwise)terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other material Company IP (excluding non-exclusive licenses of Company IP to the Company’s customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $200,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $200,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $200,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions.
(c) The Company shall use its commercially reasonable efforts, during the Interim Period, to take such actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderas set forth on Schedule 5.2(c).
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 7.2, the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, its business organization, to keep available the Company. Except services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 7.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 7.2, during the Company shall notInterim Period, without the prior written consent of NEONPurchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Governing Documents, except as required by applicable Law and to effect the transactions contemplated by this Agreement and the Ancillary Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (except for the repurchase of Company Ordinary Shares from former employees, non-employee directors and consultants in accordance with agreements as in effect on the date hereof providing for the repurchase of shares in connection with any termination of service;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 20,000 individually or $100,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement or reimbursement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 20,000 individually or $100,000 in the ordinary course of business) aggregate or guarantee any such indebtedness as required to consummate the transactions contemplated by this Agreement or issue or sell any debt securities or guarantee any debt securities of othersthe Ancillary Documents;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
(q) Pay, discharge or satisfyconsistent with past practice, in an amount in excess of $30,000 (and in any one case) or $50,000 (event not in the aggregateaggregate by more than five percent (5%), or make or commit to make any claimbonus payment (whether in cash, liability property or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), securities) other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, to any employee, or materially increase other benefits of liabilities reflected or reserved against employees generally other than in the Current Balance Sheetordinary course of business consistent with past practice, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans, pursuant to the terms of this Agreement or the Ancillary Documents, in the ordinary course of business consistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with Applicable Accounting Standards;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company IP Licenses or other Company IP (excluding non-exclusive licenses of Company IP to Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect case outside of Taxesthe ordinary course of business consistent with past practice, other than any termination at the end of the term of such Company Material Contract pursuant to the terms thereof, or consent as required to any extension consummate the transactions contemplated by this Agreement or waiver of the limitation period applicable to any claim or assessment in respect of TaxesAncillary Documents;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force material insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with Applicable Accounting Standards and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $20,000 (individually or $100,000 in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $20,000 individually for any project or set of related projects) or $100,000 in the aggregate), other than pursuant to the terms of a Company Material Contract in effect on the Agreement Date;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $20,000 individually or $100,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions; provided, that any actions described reasonably taken in Sections 5.1(a)-(s) above, or any other action that would prevent good faith by the Company from performing or cause its Subsidiaries to the Company extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to perform its covenants hereunderconstitute a breach of the requirements set forth under this Section 7.2. The Company shall notify Purchaser in writing of any such actions taken in accordance with the foregoing proviso and shall use reasonable best efforts to mitigate any negative effects of such actions on the business of the Company, in consultation with Purchaser whenever practicable.
Appears in 1 contract
Conduct of Business of the Company. During The Company shall, during the period from the date of this Agreement and continuing until the earlier of the termination of Pre-Closing Period, except as expressly required by this Agreement or by applicable Legal Requirements or with the Closing, prior written consent of the Company agrees Buyer (except to in the extent that NEON shall otherwise consent in writingBuyer’s sole discretion), to carry on the Company's (i) conduct its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business consistent with past practice, (ii) fully comply with its covenants and obligations under any Contract to which it is a party and enforce its rights thereunder, (iii) use its reasonable best efforts to preserve intact its business organization, to keep available the services of its current officers and employees, to preserve its present goodwill and satisfactory relationships with Governmental Authorities, suppliers, licensors, and other Persons having business relationships with it and (iv) comply with the Development Plan and the Budget. Without limiting the generality of the Companyforegoing, between the Signing Date and any material event involving the Company. Except Acquisition Closing, except as expressly contemplated required by this AgreementAgreement or by applicable Legal Requirements, the Company shall not, without the prior written consent of NEON:the Buyer (in the Buyer’s sole discretion):
(a) Enter into amend or propose to amend its certificate of incorporation (including any commitment certificate of designations) or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000by-laws;
(b) Enter establish any Subsidiary or enter into any agreement with respect to the Company Intellectual Property with any person new line of business or entity or with respect to the intellectual property of any person or entitydivision;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(di) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine combine, or reclassify any of its capital stock Company Securities or issue or authorize the issuance of any other securities in respect of, in lieu of of, or in substitution for shares of capital stock of the Companyfor, any Company Securities, (ii) repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem redeem, or otherwise acquire, directly or indirectly, any shares Company Securities, or (iii) declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or enter into any contract with respect to the voting of, the Company Securities;
(d) issue, offer, sell, pledge, dispose of, or encumber any Company Securities, other than (i) issue Common Shares upon the exercise of any equity award granted as of the capital Signing Date under any Company Employee Plan outstanding as of the Signing Date in accordance with its terms or (ii) issue Common Shares prior to the Acquisition Closing upon the exercise of any equity award in accordance with Section 4.2 and Section 9.7(b)(1);
(e) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof;
(f) merge or consolidate with any other Person, adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization, or commence or file any petition seeking liquidation, protection or other relief under any U.S. federal, state or foreign bankruptcy, insolvency, receivership or similar Legal Requirement or the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official;
(g) transfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any Encumbrance, any Company Assets (including any Company Intellectual Property);
(h) incur, assume or otherwise become directly or indirectly liable for, or modify, any Indebtedness other than trade account payables incurred in the ordinary course of business consistent with past practice, or lend any money to any director, officer or employee of the Company;
(hi) Issueenter into, grantrenew or extend, deliver amend or sell or authorize or propose the issuance, grant, delivery or sale ofmodify, or purchase or propose the purchase ofwaive any rights under, any shares of its capital stock or securities convertible intomaterial contract in any material respect, or subscriptions, rights, warrants consent to or options to acquire, or other agreements or commitments initiate the termination of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylawsmaterial contract;
(j) Acquire institute, settle, waive its rights under or agree to acquire compromise any Proceeding other than any Proceeding brought by merging the Company against the Buyer arising out of a breach or consolidating with, or alleged breach of this Agreement by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofthe Buyer;
(k) Sellenter into any agreement, leaseagreement in principle, license letter of intent, memorandum of understanding, or similar Contract with respect to any joint venture, strategic partnership, or alliance;
(l) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Company Intellectual Property, or grant any right or license to any Company Intellectual Property;
(m) disclose to another Person, or facilitate the use or transfer by or to another Person, of its properties any Investigational New Drug, NDA, “regulatory documents”, “essential documents” or assetsany amendments thereto, any data or information contained in the files submitted to the FDA, or any other information or data, in each case, related to the Product or improvements thereon except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;; or
(n) Grant any severance agree or termination pay (i) commit to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Take, or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing.
Appears in 1 contract
Samples: Development, Option and Stock Purchase Agreement (Fortress Biotech, Inc.)
Conduct of Business of the Company. During Except as contemplated by this Agreement, during the period from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueoperate, and shall cause each Subsidiary to use operate, its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business business. Without limiting the generality of the Companyforegoing, and any material event involving during the Company. Except period from the date of this Agreement to the Effective Time, except as expressly contemplated by this Agreement, the Company and the Subsidiaries shall not, without the prior written consent of NEONParent:
(ai) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bx) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its the Company's outstanding capital stock, or (y) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock of the Companystock, or repurchase(z) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of the outstanding capital stock of the Companyor any rights, warrants or options to acquire any such shares;
(hii) Issueissue, sell, grant, deliver pledge or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or subscriptions, any rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares shares, voting securities or other convertible securities, including under the ESPP, except for the issuance of shares of Common Stock upon exercise of Company Stock Options outstanding prior to the date of this Agreement and disclosed in Section 3.1(c), or take any action that would make the Company's representations and warranties set forth in Section 3.1(c) not true and correct in all material respects;
(iiii) Cause amend its Restated Articles of Organization or permit Restated By-laws or the comparable charter or organizational documents of any amendments to its Certificate of Incorporation or BylawsSubsidiary;
(jiv) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereofthereof (or any interest therein), or form any subsidiaries;
(kv) Sell, lease, license sell or otherwise dispose of any of its properties or substantial assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(qvi) Paymake any capital expenditures, discharge enter into leases or satisfyagreements for new locations, or make other commitments with respect thereto, except capital expenditures, leases, agreements or commitments (i) set forth on Section 4.1(vi) of the Disclosure Schedule, or (ii) not exceeding $100,000 in the aggregate as the Company may, in an amount in excess its discretion, deem appropriate;
(vii) (x) incur any indebtedness for borrowed money or guaranty any such indebtedness of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)another person, other than (A) borrowings in the paymentordinary course under existing lines of credit (or under any refinancing of such existing lines), discharge (B) indebtedness owing to, or satisfaction guaranties of indebtedness owing to, the Company or (C) in connection with the Financing, or (y) make any loans or advances to any other person, other than routine advances to employees;
(viii) grant or agree to grant to any employee any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practices;
(rix) Make merge, amalgamate or change consolidate with any material election other person or entity in respect any transaction, sell all or substantially all of Taxes, adopt its business or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxesassets, or consent to any extension acquire all or waiver substantially all of the limitation period applicable to business or assets of any claim other person or assessment in respect of Taxesentity;
(sx) Enter enter into or amend any strategic alliance employment, consulting, severance or joint marketing arrangement or agreementsimilar agreement with any person;
(xi) change its accounting policies in any material respect, except as required by generally accepted accounting principles; or
(txii) Take, commit or agree in writing or otherwise to take, take any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Bertuccis Inc)
Conduct of Business of the Company. During Except as contemplated by this Agreement, as expressly agreed to in writing by Parent or as set forth in Section 6.01 of the Company Disclosure Schedule, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the ClosingEffective Date, the Company agrees (except and each of its Subsidiaries will conduct their respective operations according to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular their ordinary and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment or transaction not in the ordinary usual course of business and consistent with past practice or any commitment or transaction and use their respective commercially reasonable efforts to preserve intact, in all material respects, each of any type whatsoever involving individual expense in excess their respective current business organizations, keep available the services of $30,000 their respective current officers and aggregate expense in excess of $100,000;employees and preserve their relationships with customers, suppliers, strategic partners, licensors, licensees, advertisers, distributors and others having business dealings with them and to preserve goodwill and will not:
(ba) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(ci) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other distributions (whether in cashactual, stock constructive or property) deemed distributions, or similar payments in respect of of, any of its capital stock, or otherwise make any payments to the Stockholders in their capacity as such, other than dividends declared prior to the date of this Agreement, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock of the Company, or repurchase(iii) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of the capital stock of the CompanyCompany Capital Stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(hb) Issueissue, grantdeliver, deliver sell, pledge, dispose of or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, otherwise encumber any shares of its capital stock Company Capital Stock, any other voting securities or equity equivalent or any securities convertible into, or subscriptions, any rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares shares, voting securities or other convertible securitiessecurities or equity equivalent except for issuances in connection with the exercise of options or warrants outstanding prior to the date hereof in accordance with their current terms;
(ic) Cause or permit any amendments to amend its organizational documents including without limitation its Certificate of Incorporation or Bylawsbylaws;
(jd) Acquire acquire or agree to acquire by merging or consolidating with, or by purchasing any a substantial portion of the assets of or equity securities ofin, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofthereof or otherwise acquire or agree to acquire any assets that in the aggregate have a value in excess of $100,000;
(ke) Sellexcept in the ordinary course of business, leasesell, license lease or otherwise dispose of of, or agree to sell, lease or otherwise dispose of, any of its properties assets that in the aggregate have a value exceeding $100,000;
(f) except in the ordinary course of business, cancel, terminate or assetsmaterially amend or otherwise modify, or terminate, any Contract, or enter into any joint venture or management agreement or other material agreement of the Company;
(g) except in the ordinary course of business and consistent with past practices;
under the Company’s existing line of credit (l) Incur including letters of credit), incur any additional indebtedness (including for this purpose any indebtedness for borrowed money evidenced by notes, debentures, bonds, leases or other similar instruments, or secured by any Lien on any property, conditional sale obligations, obligations under any title retention agreement and obligations under letters of credit or similar credit transaction) in a single transaction or a group of related transactions, enter into a guaranty, or engage in any other financing arrangements having a value in excess of $30,000 100,000, or make any loans, advances or capital contributions to, or investments in, any other Person (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersloans to employees having an aggregate outstanding value not exceeding $100,000);
(mh) Grant split, combine or reclassify its capital stock whether through merger, liquidation, reorganization, restructuring or any loans to others other fashion or purchase debt securities of others otherwise alter its corporate structure or amend the terms of any outstanding loan agreementownership;
(n) Grant any severance or termination pay (i) to except as may be required as a result of a change in law or in GAAP, change its method of accounting or any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereofaccounting principle, method, estimate, practice used by it;
(oj) Adopt except as may be required as a result of a change in law or amend any Employee Planin GAAP, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue revalue any of its assets, including including, without limitation limitation, writing down the value of its inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(qk) Paymake any material Tax election, change any annual Tax accounting period, amend any Tax Return, settle or compromise any Income Tax liability, enter into any closing agreement, settle any Tax claim or assessment, or surrender any right to claim a Tax refund;
(l) except in the ordinary course of business, settle or compromise any pending or threatened suit, action or claim which would reasonably be expected to result in damages or costs of $100,000 or more or enter into any consent decree, injunction or similar restraint or form of equitable relief in settlement of any suit, action or claim;
(m) pay, discharge or satisfysatisfy any claims, in an amount in excess of $30,000 (in any one case) liabilities or $50,000 (in the aggregate), any claim, liability or obligation obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), ) other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the financial statements (or the notes thereto) of the Company or incurred in the Current Balance Sheetordinary course of business consistent with past practice;
(n) increase in any manner the compensation or fringe benefits of any of its directors, officers or employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing savings, severance, incentive or other or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee, or, except to the extent required by law, voluntarily accelerate the vesting of any compensation or benefit, or grant any loans or increases to any outstanding loans to any of the Company’s directors or officers;
(o) waive, amend or allow to lapse any term or condition of any confidentiality, “standstill,” consulting, advisory or employment agreement to which the Company is a party;
(p) approve any annual operating budgets for the Company;
(q) change the Company’s dividend policy;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreementtransaction with Affiliates which are not entered into on arms length terms and automatically terminable, settle any claim or assessment in respect of Taxesupon its terms, or consent to any extension or waiver without cost as of the limitation period applicable to any claim or assessment in respect of TaxesEffective Time;
(s) Enter (A) enter into any strategic alliance business other than the business currently engaged in by the Company or joint marketing (B) incur or commit to any capital expenditures or any obligations or liabilities in connection therewith other than capital expenditures which individually or in the aggregate do not exceed $100,000 or make payments in connection with the foregoing;
(t) pursuant to or within the meaning of any bankruptcy law, (i) commence a voluntary case, (ii) consent to the entry of an order for relief against it in an involuntary case, (iii) consent to the appointment of a custodian of it or for all or substantially all of its property or (iv) make a general assignment for the benefit of its creditors;
(u) purchase or lease or enter into a binding agreement to purchase or lease any real property having an annual required payment exceeding $100,000;
(v) enter into or amend, modify or voluntarily terminate any employment, consulting or independent contractor agreement, arrangement or agreementunderstanding with any officer, director, or any relative thereof;
(w) enter into any development agreement with a third-party, option relating to such development agreement or any other obligations thereunder which in the aggregate would have a cost to the Company in excess of $100,000;
(x) permit any discounting or promotional activities with respect to its business which are inconsistent with past practice in the ordinary course of business;
(y) maintain insurance coverage at less than presently existing levels;
(z) except in the ordinary course of business, sell, transfer, lease, pledge, dispose or otherwise voluntarily encumber in any way, or agree to do any of the foregoing, in whole or in part, the Company Intellectual Property Rights, or knowingly or intentionally take any action which would reduce, diminish or destroy the value of the Company Intellectual Property Rights or disseminate or disclose to others the confidential or proprietary information involving the Company’s Intellectual Property Rights in violation of the terms of any non-disclosure agreements or otherwise violate the confidentiality provisions of this Agreement with respect to any Company Intellectual Property Rights;
(aa) not enter into any Contract which, if entered into prior to the date of this Agreement, would have been required to have been to have been disclosed in Section 4.24 of the Company Disclosure Schedule, provided, however, that the foregoing shall not prevent the either of the Company or any of its Subsidiaries from entering into any extension, renewal or replacement of any Material Contract disclosed in Section 4.24 of the Company Disclosure Schedule in accordance with the terms of such Contract or otherwise on terms that are not materially less advantageous to the Company or the applicable Subsidiary than the terms of the Contract so disclosed; or
(tbb) Taketake, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(sforegoing actions. During the period from the date of this Agreement through the Effective Date, (i) aboveas reasonably requested by Parent so as not to interfere with ongoing operations of the Company and its Subsidiaries, the Company shall confer on a regular basis with one or more representatives of Parent with respect to material operational matters; (ii) the Company shall, within 30 days following each fiscal month, deliver to Parent management prepared unaudited financial statements as to the Company and its Subsidiaries, including an income statement and balance sheet for such month; and (iii) upon obtaining knowledge of any Material Adverse Change to the Company or its Subsidiaries, any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or the breach in any other action that would prevent material respect of any representation or warranty contained herein, the Company from performing or cause the Company not to perform its covenants hereundershall promptly notify Parent thereof.
Appears in 1 contract
Samples: Merger Agreement (Shopping Com LTD)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2 of the Company Disclosure Schedules, the Company agrees shall, and shall cause its Subsidiaries to, (except i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the extent that NEON shall otherwise consent Company and their respective businesses, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in writing)all material respects, their respective business organizations, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers Key Employees, and key employees and to preserve the Company's relationships with customerspossession, suppliers, distributors, licensors, licensees, control and others having business dealings with itcondition of their respective material assets, all as consistent with past practice.
(b) Without limiting the goal generality of preserving unimpaired Section 5.2(a) and except as contemplated by the Company's goodwill and ongoing businesses at terms of this Agreement or the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business Ancillary Documents as set forth on Schedule 5.2 of the CompanyCompany Disclosure Schedules, and any material event involving during the Company. Except as expressly contemplated by this Agreement, the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except for any such amendment to permit the Preferred Conversion;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities (in each case, other than pursuant to the Pre-Closing Company Capital Raise);
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities (in each case, other than pursuant to the Pre-Closing Company Capital Raise);
(iv) other than in conjunction with the Pre-Closing Company Capital Raise, incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $250,000 individually or $1,000,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess of $25,000 individually or $250,000 in the aggregate;
(A) materially increase the wages, salaries or compensation of its employees, in any event not in the aggregate by more than five percent (5%), (B) make or commit to make any bonus payment (whether in cash, property or securities) to any employee, or (C) enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case of (A) – (C) other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans or in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000practice;
(bvi) Enter into make or rescind any agreement material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with respect GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP or other Company IP (excluding non-exclusive licenses of Company IP to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except customers in the ordinary course of businessbusiness consistent with past practice), or violate the terms ofdisclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company Material Contract, in any case outside of the Contracts set forth ordinary course of business consistent with past practice;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or described enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Disclosure ScheduleFinancials;
(fxiv) Commence close or settle materially reduce its activities, or effect any litigationlayoff or other personnel reduction or change, at any of its facilities;
(gxv) Declareacquire, set aside including by merger, consolidation, acquisition of equity interests or pay any dividends on assets, or make any other distributions (whether in cashform of business combination, stock any corporation, partnership, limited liability company, other business organization or property) in respect of any of its capital stockdivision thereof, or splitany material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $25,000 (individually for any project (or set of related projects) or $100,000 in the aggregate), combine or reclassify any of its capital stock or issue or authorize other than expenditures deemed necessary for the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock advancement of the Company’s products;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or repurchaseotherwise dispose of any material portion of its properties, redeem assets or otherwise acquirerights;
(xx) enter into any agreement, directly understanding or indirectly, any shares arrangement with respect to the voting of the capital stock equity securities of the Company;
(hxxi) Issue, grant, deliver take any action that would reasonably be expected to significantly delay or sell or authorize or propose impair the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments obtaining of any character obligating it Consents of any Governmental Authority to issue or purchase any such shares or other convertible securitiesbe obtained in connection with this Agreement;
(ixxii) Cause accelerate the collection of any trade receivables or permit any amendments to its Certificate delay the payment of Incorporation trade payables or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable liabilities other than in the ordinary course of businessbusiness consistent with past practice;
(qxxiii) Payenter into, discharge amend, waive or satisfyterminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in an amount in excess of $30,000 (in any one each case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction provided in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice);
(rxxiv) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver maintain the existing relations and goodwill of the limitation period applicable Company with customers, suppliers, distributors and creditors of the Company and use commercially reasonable efforts to any claim maintain all insurance policies of the Company or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementequivalent substitutes therefor; or
(txxv) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents, or as set forth on Schedule 6.2, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueshall, and to use shall cause its best efforts to preserve intact the Company's present business organizationSubsidiaries to, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers(i) conduct their respective businesses, suppliersin all material respects, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business (except for any actions reasonably taken in good faith by the Target Companies to the extent reasonably necessary to address any Excluded Events described in clauses (iii), (iv) or (v) of the Companydefinition thereof), (ii) comply in all material respects with all Laws applicable to the Target Companies and their respective businesses, assets and employees, and any (iii) take commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations.
(b) Without limiting the Company. Except generality of Section 6.2(a) and except as expressly contemplated by the terms of this AgreementAgreement or the Ancillary Documents (including the Reorganization), or as set forth on Schedule 6.2, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property such securities, except in compliance with any person Contract (including any warrant, option, or entity or with respect profits interest award) outstanding as of the date hereof which has been disclosed in writing to the intellectual property of any person or entityPurchaser;
(ciii) Transfer to split, combine, recapitalize or reclassify any person of its shares or entity any rights to the Company Intellectual Property;
(d) Enter into other equity interests or amend any Contract pursuant to which issue any other party is granted marketing, distribution securities in respect thereof or similar rights of any type pay or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside any dividend or pay any dividends on or make any other distributions distribution (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iiv) Cause or permit excluding the Bridge Notes, allow the aggregate Indebtedness of the Target Companies to exceed an amount equal to the sum of $1,000,000 plus the aggregate amount of Indebtedness of the Target Companies as of December 31, 2020, less the amount of the proceeds of any amendments Sales-Leasebacks that are used to its Certificate of Incorporation or Bylawspay-off and reduce the outstanding Indebtedness for borrowed money owed by the Target Companies in accordance with Section 6.21;
(jv) Acquire increase the wages, salaries or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any compensation of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent (q5%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate or assign any Company Material Contract or enter into any closing agreementContract (other than a purchase order in the ordinary course of business) that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter establish any Subsidiary or enter into any strategic alliance new line of business;
(x) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xi) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $500,000 (individually or in the aggregate);
(xiii) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xiv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice, except pursuant to any Contract in existence as of the date hereof which has been disclosed in writing to the Purchaser;
(xv) make capital expenditures in excess of $500,000 (individually for any project (or set of related projects) or $1,000,000 in the aggregate);
(xvi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization;
(xvii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $500,000 individually or $1,000,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan, in any case, outside of the ordinary course of business, taking into account the anticipated growth in the Target Companies’ businesses;
(xviii) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xix) enter into any written agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xx) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxi) materially alter any, or adopt any new, policy or procedure concerning the acceleration of trade receivables or delay of payment of trade payables or other liabilities outside the ordinary course;
(xxii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Samples: Business Combination Agreement (Andina Acquisition Corp. III)
Conduct of Business of the Company. During Except as contemplated by this Agreement or as expressly agreed to in writing by Parent (such consent not to be unreasonably withheld), during the period from the date of this Agreement and continuing until the earlier such time as Parent's designees shall constitute a majority of the termination members of this Agreement or the ClosingBoard of Directors of the Company, the Company agrees (except will conduct its operations according to the extent that NEON shall otherwise consent in writing), to carry on the Company's its ordinary and usual course of business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts consistent with past practice and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best commercially reasonable efforts to preserve intact the Company's present its current business organization, keep available the services of the Company's present its current officers and key employees and preserve the Company's its relationships with customers, suppliers, distributors, licensors, licensees, advertisers, distributors and others having material business dealings with it, all with it and to preserve goodwill. Without limiting the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business generality of the Companyforegoing, and any material event involving the Company. Except except as (x) otherwise expressly contemplated by provided in this Agreement, (y) required by law, or (z) set forth on Schedule 6.01 of the Company shall notDisclosure Schedule, the Company will not without the prior written consent of NEON:Parent (such consent not to be unreasonably withheld):
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bi) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cash, stock or property) in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, other than dividends declared prior to the date of this Agreement, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the CompanyCompany or any other securities thereof or any rights, warrants or repurchase, redeem options to acquire any such shares or otherwise acquire, directly or indirectly, any shares of the capital stock of the Companyother securities;
(hb) Issueother than in connection with the exercise of options and warrants outstanding prior to the date hereof in accordance with their current terms, grantissue, deliver deliver, sell, pledge, dispose of or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, otherwise encumber any shares of its capital stock stock, any other voting securities or equity equivalent or any securities convertible into, or subscriptions, any rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares shares, voting securities or other convertible securitiessecurities or equity equivalent;
(ic) Cause or permit any amendments to amend its Certificate of Incorporation or BylawsBy-Laws;
(jd) Acquire acquire or agree to acquire by merging or consolidating with, or by purchasing any a substantial portion of the assets of or equity securities ofin, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofthereof or otherwise acquire or agree to acquire any assets;
(ke) Sellsell, lease, license lease or otherwise dispose of of, or agree to sell, lease or otherwise dispose of, any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(lf) Incur amend or otherwise modify, or terminate, any Contract;
(g) incur any additional indebtedness (including for this purpose any indebtedness for borrowed money evidenced by notes, debentures, bonds, leases or other similar instruments, or secured by any lien on any property, conditional sale obligations, obligations under any title retention agreement and obligations under letters of credit or similar credit transaction) in a single transaction or a group of related transactions, enter into a guaranty, or engage in any other financing arrangements having a value in excess of $30,000 (10,000, or make any loans, advances or capital contributions to, or investments in, any other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersperson;
(mh) Grant alter through merger, liquidation, reorganization, restructuring or in any loans to others other fashion its corporate structure or purchase debt securities of others or amend the terms of any outstanding loan agreementownership;
(n) Grant any severance or termination pay (i) to except as may be required as a result of a change in law or in generally accepted accounting principles, change any director of the accounting principles or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereofpractices used by it;
(oj) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue revalue any of its assets, including including, without limitation limitation, writing down the value of its inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(qk) Paymake any tax election, change any annual tax accounting period, amend any tax return, settle or compromise any income tax liability, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund or fail to make the payments or consent to any extension or waiver of the limitations period applicable to any tax claim or assessment;
(l) except in the ordinary course of business, settle or compromise any pending or threatened suit, action or claim with a cost of $10,000 or more;
(m) pay, discharge or satisfysatisfy any claims, in an amount in excess of $30,000 (in any one case) liabilities or $50,000 (in the aggregate), any claim, liability or obligation obligations (absolute, accrued, asserted or unassertedasserted, contingent or otherwise), ) other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the financial statements (or the notes thereto) of the Company or incurred in the Current Balance Sheetordinary course of business consistent with past practice;
(n) increase in any manner the compensation or fringe benefits of any of its directors, officers and other key employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee, other than increases in the compensation of employees who are not officers or directors of the Company made in the ordinary course of business consistent with past practice, or, except to the extent required by law, voluntarily accelerate the vesting of any compensation or benefit;
(o) waive, amend or allow to lapse any term or condition of any confidentiality, "standstill", consulting, advisory or employment agreement to which the Company is a party (except for any agreement which terminates in accordance with its express terms);
(p) approve any annual operating budgets for the Company;
(q) change the Company's dividend policy;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxestransaction with affiliates;
(s) Enter enter into any strategic alliance business other than the business currently engaged in by the Company;
(t) pursuant to or within the meaning of any bankruptcy law, (i) commence a voluntary case, (ii) consent to the entry of an order for relief against it in an involuntary case, (iii) consent to the appointment of a custodian of it or for all or substantially all of its property or (iv) make a general assignment for the benefit of its creditors;
(u) purchase or lease or enter into a binding agreement to purchase or lease any real property;
(v) enter into or amend, modify or terminate any employment agreement with any officer or employee;
(w) enter into any joint marketing venture, lease, license, management agreement, research agreement, development agreement, option or other obligation relating to new development, or any other agreement of the Company, including without limitation any agreement or arrangement or agreementrelating to Intellectual Property Rights; or
(tx) Taketake, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(sforegoing actions. During the period from the date of this Agreement through the Effective Time, (i) aboveas requested by Parent, the Company shall confer on a regular basis with one or more representatives of Parent with respect to material operational matters; (ii) the Company shall, within 30 days following each fiscal month, deliver to Parent financial statements, including an income statement and balance sheet for such month; and (iii) upon the knowledge of the Company of any material adverse change to the Company, any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or the breach in any other action that would prevent material respect of any representation or warranty contained herein, the Company from performing or cause shall promptly notify Parent thereof. Notwithstanding any provision contained in this Agreement, action taken by the Company which is permitted under this Section 6.01 shall not constitute a misrepresentation or breach of warranty or covenant. The Company shall have the right to perform its covenants hereunderupdate the Company Disclosure Schedule, as it relates to Section 4.07, between the date hereof and the Effective Time to reflect actions taken by the Company which are permitted to be taken pursuant to this Section 6.01.
Appears in 1 contract
Samples: Merger Agreement (Cocensys Inc)
Conduct of Business of the Company. During (a) Unless the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (except to the extent that NEON Purchaser shall otherwise consent in writingwriting (such consent not to be unreasonably withheld, conditioned or delayed), to carry on during the Company's business in the usualInterim Period, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly contemplated by this Agreement, or the Ancillary Documents, as required by applicable Law or as set forth on Schedule 5.2, the Company shall not(i) conduct its business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply with all Laws applicable to the Company and its business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as consistent with past practice.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement, or the Ancillary Documents, as required by applicable Law or as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or transaction not in the ordinary course propose to issue, grant, sell, pledge or dispose of business and consistent with past practice any of its equity securities or any commitment options, warrants, commitments, subscriptions or transaction rights of any type whatsoever involving individual expense kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $30,000 and aggregate expense 200,000 individually or $500,000 in excess the aggregate, make a loan or advance to or investment in any third party (other than advancement of $100,000;
(b) Enter into any agreement with respect expenses to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 200,000 individually or $500,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
(q) Pay, discharge or satisfyconsistent with past practice, in an amount in excess of $30,000 the aggregate by more than ten percent (in any one case) or $50,000 (in the aggregate10%), or make or commit to make any claimbonus payment (whether in cash, liability property or obligation (absolutesecurities) to any employee, accruedor materially increase other benefits of employees generally, asserted or unassertedenter into, contingent establish, materially amend or otherwise)terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other material Company IP (excluding non-exclusive licenses of Company IP to the Company’s customers in the ordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $200,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $200,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $200,000 individually or $500,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions.
(c) The Company shall use its commercially reasonable efforts, during the Interim Period, to take such actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderas set forth on Schedule 5.2(c).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Deep Medicine Acquisition Corp.)
Conduct of Business of the Company. During Unless the period from SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents (including as contemplated by any Debenture Financing in accordance with Section 12.1), the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organization, to keep available the services of its managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of its assets. The Company shall provide advance written notice to the SPAC of any material event involving action that is not within the Companyordinary course and consistent with past practice. Except as expressly contemplated by the terms of this AgreementAgreement or the Ancillary Documents, during the Company shall notInterim Period, without the prior written consent of NEONthe SPAC (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(a) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(b) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any Class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(c) Transfer split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any person or entity of its securities (except for the repurchase of Company Shares from former employees, non-employee directors and consultants in accordance with agreements as in effect on the date hereof providing for the repurchase of shares in connection with any rights to the Company Intellectual Propertytermination of service);
(d) Enter into or amend any Contract pursuant to which any other party is granted marketingincur, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend create, assume, prepay, commit to, or otherwise modify become liable for any Indebtedness (directly, contingently or agree otherwise) in excess of $100,000 individually or $600,000 in the aggregate, make a loan or advance to do so), except or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or violate the terms ofguarantee or endorse any Indebtedness, any of the Contracts set forth Liability or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect obligation of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money Person in excess of $30,000 (other than increases under existing equipment leases 100,000 individually or $600,000 in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersaggregate;
(me) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
(q) Pay, discharge or satisfyconsistent with past practice, in an amount in excess of $30,000 (and in any one case) or $50,000 (event not in the aggregateaggregate by more than five percent (5%), or make or commit to make any claimbonus payment (whether in cash, liability property or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), securities) other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice, to any employee, or increase other benefits of liabilities reflected employees generally, or reserved against enter into, establish, amend or terminate any Company Benefit Plan other than as required by applicable Law or pursuant to the terms of any Company Benefit Plans;
(f) take any action to (i) hire or terminate any officer, director, employee or other individual service provider of the Company, (ii) grant, announce or modify any equity or equity-based awards, (iii) accelerate the payment, funding, right to payment or vesting of any compensation or benefits, or (iv) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union or labor organization;
(g) make or rescind any material election relating to Taxes, settle any Action, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with IFRS;
(h) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company IP Licenses or other Company Intellectual Property (excluding non-exclusive licenses of Company Intellectual Property to Company customers in the Current Balance Sheetordinary course of business consistent with past practice), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(i) terminate, waive, renew, extend, assign, or fail to maintain in effect any material right under, any Company Material Contract or enter into any Contract that would be a Company Material Contract;
(j) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(k) establish any Subsidiary or enter into any new line of business;
(l) voluntarily terminate, cancel, materially modify or amend, permit to lapse, or fail to keep in force any insurance policies maintained for the benefit of the Company or providing insurance coverage with respect to its assets, operations and activities, without replacing or revising such policies with a comparable amount of insurance coverage with substantially similar coverage to that which is currently in effect;
(m) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with IFRS and after consulting with the Company’s outside auditors;
(n) waive, release, assign, commence, initiate, satisfy, settle or compromise any Action, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $250,000 individually or $1,000,000 in the aggregate, or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(o) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(p) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(q) make capital expenditures in excess of $250,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(r) Make authorize, recommend, propose or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxesannounce an intention to adopt, or consent to any extension otherwise effect a plan of complete or waiver of the limitation period applicable to any claim partial liquidation, rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or assessment in respect of Taxesother reorganization or similar transaction;
(s) Enter voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $50,000 individually or $100,000 in the aggregate, other than pursuant to the terms of a Company Material Contract or Company Benefit Plan or for Expenses incurred by the Company in connection with the transactions contemplated by this Agreement;
(t) purchase, sell, lease, license, transfer, exchange or swap, pledge, mortgage or otherwise pledge or encumber (including securitizations), or transfer or otherwise dispose of any material portion of its properties, assets or rights (including equity interests of the Company);
(u) enter into any strategic alliance agreement, understanding or joint marketing arrangement with respect to the voting of equity securities of the Company;
(v) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(w) accelerate the collection of any trade receivables or delay the payment of trade payables or any other Liabilities other than in the ordinary course of business consistent with past practice; or
(tx) Takeenter into, amend, waive or agree terminate (other than terminations in writing or otherwise to takeaccordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, any in each case, provided in the ordinary course of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderbusiness consistent with past practice).
Appears in 1 contract
Samples: Business Combination Agreement (Insight Acquisition Corp. /DE)
Conduct of Business of the Company. During (a) Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the Closing, Closing (the Company agrees (except to the extent that NEON shall otherwise consent in writing“Interim Period”), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly contemplated by this Agreement, the Company shall not(i) conduct its businesses, in all material respects, in the Ordinary Course of Business, (ii) comply with all Laws applicable to the Company and its businesses, assets and employees, and (iii) take all reasonable measures necessary or appropriate to preserve intact, in all material respects, its business operations and to keep available the services of its managers, officers, employees and consultants, and to preserve the possession, control and condition of its material assets, all as consistent with its Ordinary Course of Business.
(b) Without limiting the generality of Section 6.1(a) and except as contemplated by the terms of this Agreement, during the Interim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Governing Documents;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its equity securities and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer to split, combine, recapitalize or reclassify any person of its equity interests or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which issue any other party is granted marketing, distribution securities in respect thereof or similar rights of any type pay or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside any dividend or pay any dividends on or make any other distributions distribution (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its capital stocksecurities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or splitguarantee or endorse any Indebtedness, combine Liability or reclassify obligation of any Person;
(v) increase the wages, salaries or compensation of its employees, or make or commit to make any bonus payment (whether in cash, property or securities) to any employee, or increase other benefits of employees generally;
(vi) make or rescind any election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, amend or modify, permit to lapse or fail to preserve any of its capital stock the Owned IP, or issue disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, waive or authorize assign any right under any Material Contract or enter into any Material Contract;
(ix) establish any Subsidiary or enter into any new line of business;
(x) make any change in accounting methods, principles or practices, except to the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of extent required to comply with GAAP and after consulting with the Company’s outside auditors;
(xi) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), or repurchaseotherwise pay, redeem discharge or otherwise acquiresatisfy any Actions, directly Liabilities or indirectlyobligations, any shares of unless such amount has been reserved in the capital stock financial statements of the Company;
(hxii) Issueacquire, grantincluding by merger, deliver consolidation, acquisition of stock or sell or authorize or propose the issuance, grant, delivery or sale ofassets, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other mannerform of business combination, any business or any corporation, partnership, association or limited liability company, other business organization or any division thereof, or any material amount of assets outside the Ordinary Course of Business;
(kxiii) Sellmake capital expenditures outside the Ordinary Course of Business;
(xiv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xv) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) other than pursuant to the terms of a material Contract or in the Ordinary Course of Business;
(xvi) sell, lease, license license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties properties, assets or assets, except in the ordinary course of business and consistent with past practicesrights;
(lxvii) Incur enter into any indebtedness for borrowed money in excess agreement, understanding or arrangement with respect to the voting of $30,000 equity securities of the Company;
(xviii) enter into, amend, waive or terminate (other than increases under existing equipment leases terminations in the ordinary course of businessaccordance with their terms) or guarantee any such indebtedness or issue or sell transaction with any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementRelated Person; or
(txix) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Samples: Share Exchange Agreement (Smaaash Entertainment Inc.)
Conduct of Business of the Company. During (a) Unless the period from SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 6.2, the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and any (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, their respective business organizations, to keep available the Company. Except services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 6.2(a) and except as contemplated by the terms of this AgreementAgreement or the Ancillary Documents as set forth on Schedule 6.2, during the Company shall notInterim Period, without the prior written consent of NEONthe SPAC (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents, except as required by applicable Law;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer to split, combine, recapitalize or reclassify any person of its shares or entity any rights to the Company Intellectual Property;
(d) Enter into other equity interests or amend any Contract pursuant to which issue any other party is granted marketing, distribution securities in respect thereof or similar rights of any type pay or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside any dividend or pay any dividends on or make any other distributions distribution (whether in cash, stock equity or propertyproperty or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(iiv) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating withincur, or by purchasing any assets or equity securities ofcreate, or by any other mannerassume, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license prepay or otherwise dispose of become liable for any of its properties Indebtedness (directly, contingently or assets, except in the ordinary course of business and consistent with past practices;
(lotherwise) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases 500,000 individually or $1,000,000 in the ordinary course of business) aggregate, make a loan or advance to or investment in any third party or guarantee or endorse any such indebtedness Indebtedness, Liability or issue obligation of any Person in excess of $500,000 individually or sell any debt securities or guarantee any debt securities of others$1,000,000 in the aggregate;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than ten percent (q10%), or make or commit to make any bonus payment (whether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with Canadian GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company IP Licenses or other Company IP, or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any closing agreementContract that would be a Company Material Contract, settle in any claim or assessment in respect of Taxes, or consent to any extension or waiver case outside of the limitation period applicable to any claim or assessment in respect ordinary course of Taxesbusiness consistent with past practice;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force material insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with Canadian GAAP and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company) not in excess of $250,000 individually or $500,000 in the aggregate, or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $500,000 (individually for any project (or set of related projects) or $1,000,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) not referenced in another subsection of this Section 6.2(b) in excess of $500,000 individually or $1,000,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company other than this Agreement or agreementany of the Ancillary Documents;
(xxi) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;
(xxiii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiv) Take, authorize or agree in writing or otherwise to take, do any of the foregoing actions. The Company shall notify the SPAC in writing of any such actions described taken in Sections 5.1(a)-(s) aboveaccordance with the foregoing proviso and shall use commercially reasonable efforts to mitigate any negative effects of such actions on the business of the Company, or any other action that would prevent in consultation with the Company from performing or cause the Company not to perform its covenants hereunderSPAC whenever practicable.
Appears in 1 contract
Samples: Business Combination Agreement (Pono Capital Three, Inc.)
Conduct of Business of the Company. During From the period from date hereof until the Closing, unless the Acquiror otherwise consents to in writing (which consent shall not be unreasonably withheld or delayed), the business of the Company will be conducted in the Ordinary Course of Business and in accordance with applicable Law, and the Company will use commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees, consultants, and contractors 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 material business relations. Without limiting the generality of the foregoing, prior to the Closing, unless either (a) explicitly required by the terms of this Agreement or (b) the Acquiror otherwise agrees in writing, each of the Company will not, between the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEON:
(a) Enter into any commitment amend or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000otherwise change its governing documents;
(b) Enter into issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant, or encumbrance of any agreement shares in the capital of the Company or options, warrants or other agreements to acquire any shares or other equity or ownership interest (including any stock appreciation rights or phantom interests) with respect to the Company Intellectual Property with or any person revenue or entity or with profit-sharing interest in respect to of the intellectual property of any person or entityCompany;
(c) Transfer declare, set aside, make, or pay any dividend or other distribution with respect to any person or entity any rights to the Company Intellectual Propertyof its shares;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketingreclassify, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so)combine, except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect ofsubdivide, in lieu of or in substitution for shares of capital stock of the Companyredeem, or repurchasepurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securitiesshares;
(i) Cause acquire or permit invest in any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization Person or division thereof;
; (kii) Sellincur or repay any Indebtedness (other than accrued vacation); (iii) enter into, leaseterminate, license or otherwise dispose amend any Material Contract or Contract that would be a Material Contract if entered into as of the date of this Agreement; (iv) authorize any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money individual capital expenditures in excess of $30,000 10,000; (v) authorize aggregate capital expenditures in excess of $25,000; or (vi) increase or change any assumptions underlying, or methods of calculating, any bad debt, contingency, or other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersreserves;
(mf) Grant any loans to others Except as required by applicable Legal Requirements or purchase debt securities of others or amend by the terms of any outstanding loan agreement;
a Company Employee Plan or Company Employee Contract existing as of the date hereof, (ni) Grant increase, defer, or fail to pay the compensation payable or to become payable to its current, former, or prospective directors, officers, employees, agents, consultants, or contractors or grant any severance or termination pay to any current, former, or prospective directors, officers, employees, agents, consultants, or contractors, or establish, adopt, enter into, terminate, fail to renew, or amend any Company Employee Plan, collective bargaining, or other Contract, trust, fund, or policy for the benefit of any current, former, or prospective directors, officers, employees, agents, consultants, or contractors; (ii) make any equity awards to any director, officer, employee, consultant, or contractor of the Company; or (iii) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Employee Plan to the extent not explicitly required by the terms of this Agreement or such Company Employee Plan as in effect on the date of this Agreement;
(g) make any change with respect to accounting methods or practices or internal accounting control, inventory, investment, credit, allowance, or Tax procedures or practices;
(i) to make, revoke, or alter any director or officer or Tax election; (ii) settle or compromise any Tax liability; (iii) file any amended Tax Return; (iv) surrender any right to claim a Tax refund, offset, or other reduction in Tax liability; (v) extend any statute of limitations with respect to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
Tax Return; or (ovi) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(si) Enter into negotiate, settle, pay, discharge or satisfy any strategic alliance Action or joint marketing arrangement liability (absolute, accrued, asserted or agreementunasserted, contingent or otherwise), including any litigation, arbitration or other Action, or give any discount, accommodation or other concession other than in the Ordinary Course of Business consistent with past practice, in order to accelerate or induce the collection of any receivable;
(j) forgive, cancel, or defer any Indebtedness or waive any claims or rights of material value;
(k) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was issued or incurred;
(l) purchase or sell, transfer, license, lease, or otherwise dispose of any material properties or assets (real, personal, or mixed, tangible or intangible), other than the purchase of inventory or the sale of products and services in the Ordinary Course of Business;
(m) assign, license, forfeit, or permit to lapse, or instruct or consent to a future lapse of, any Company Intellectual Property rights;
(n) make or approve any write-off or write-down or any determination to write-off or write-down any of the assets or properties of the Company;
(o) pay, loan, or advance any amount to, or sell, transfer, license, lease, or otherwise dispose of any properties or assets (real, personal or mixed, tangible or intangible) to, any of the Company’s current or former shareholders, debtholders, members, officers, directors, managers, employees, agents, contractors, or consultants or any of their respective Affiliates, other than (i) cash compensation paid to officers, employees, contractors, and consultants at rates not exceeding the rates of compensation paid during the fiscal year last ended and (ii) advances for travel and other business-related expenses;
(p) accelerate the collection of any receivables or delay the payment of any payables in any manner not in the Ordinary Course of Business, or make any change to practices or procedures with respect to the collection of any receivables or the payment of any payables in any manner not in the Ordinary Course of Business;
(q) take any action that could or is reasonably likely to result in (i) any of the representations or warranties of the Company or any Contributor set forth in this Agreement being untrue in any respect, (ii) the breach of any covenant of the Company or any Contributor set forth in this Agreement, or (iii) any of the conditions specified in Article VII not being satisfied; or
(tr) Take, agree or agree in writing or otherwise commit to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing.
Appears in 1 contract
Samples: Contribution Agreement (Cybin Inc.)
Conduct of Business of the Company. During Except as set forth in Schedule 7.1 or as otherwise required pursuant to the terms of this Agreement, during the period from the date of this Agreement and continuing until to the earlier of the Closing Date and the termination of this Agreement or the Closingin accordance with Article IX, the Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's conduct its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not operations in the ordinary course of business consistent with past practices and use commercially reasonable efforts to preserve intact its business organizations, to retain the services of its officers and key employees and to preserve the Companygoodwill of its material customers and suppliers, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall notand, without the prior written consent of NEONthe Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) to not undertake any of the following actions:
(a) Enter issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (i) Equity Interests of any class of the Company (including the Shares), or securities convertible into or exchangeable for any commitment such Equity Interests, or transaction not any rights, warrants or options to acquire any such Equity Interests or other convertible securities of the Company other than shares of capital stock issued pursuant to outstanding stock options exercised in the ordinary course of business and consistent with past practice on the date hereof or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bii) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of of, or in substitution for shares of capital stock Equity Securities of the CompanyCompany (including the Shares) outstanding on the date hereof;
(b) redeem, or repurchase, redeem purchase or otherwise acquire, directly or indirectly, acquire any shares of the capital stock outstanding Equity Securities of the Company;
(hc) Issueadopt any amendment to the certificate of incorporation, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, by-laws or other agreements organizational documents of the Company;
(d) incur any Indebtedness in excess of $25,000 individually or commitments $50,000 in the aggregate, other than Indebtedness under the Financing Agreement in the ordinary course of any character obligating it to issue or purchase any such shares or other convertible securitiesbusiness;
(i) Cause increase the rate or permit any amendments to its Certificate terms of Incorporation compensation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose benefits of any of its properties directors, officers or employees except as may be required under existing employment agreements, or (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, or (iii) enter into, adopt or amend any employment, bonus, severance or retirement Contract or adopt any employee benefit plan, other than as required by applicable Law;
(f) (i) grant, extend, waive, amend or modify (except as required in the diligent prosecution of the Company Intellectual Property), any material rights in or to the Company Intellectual Property, (ii) fail to diligently prosecute applications for the Company Intellectual Property, (iii) fail to exercise a right of renewal or extension prior to the expiry of such right under any material Company Intellectual Property licensed from third parties or (iv) sell, pledge, dispose of, transfer, lease, license, guarantee, or encumber, or authorize any of the foregoing of any material Company Intellectual Property, except in the ordinary course of business consistent with past practice;
(g) except in the ordinary course of business (i) sell, lease, transfer or otherwise dispose of, any of its property or assets or (ii) create any Encumbrance (other than a Permitted Encumbrance) on any property or assets;
(h) make any loans, advances or capital contributions, except in the ordinary course of business and except for advances for travel and other normal business expenses to officers and employees in the ordinary course of business consistent with past practices;
(li) Incur merge or consolidate with, purchase substantially all the assets of, or otherwise acquire or combine with, any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersPerson;
(mj) Grant make any loans to others or purchase debt securities change in any method of others or amend the terms of any outstanding loan agreementaccounting other than those required by GAAP;
(nk) Grant any severance or termination pay (i) to make, change or revoke any director or officer or Tax election, (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement“closing agreement” as described in Section 7121 of the Code (or any similar provision of state, pay local or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(q) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregateforeign Law), settle or compromise any claim, liability Liability with respect to Taxes or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change surrender any material election in respect claim for a refund of Taxes, adopt or change (iii) file any accounting method in respect of TaxesTax Return, enter into any closing agreement, settle any claim or assessment in respect of Taxesexcept to the extent required by applicable Law and consistent with Section 11.1, or (iv) consent to any extension or waiver of the limitation limitations period applicable to any claim or assessment in with respect of Taxes, in each case, to the extent such action could materially affect Buyer or the Company in a taxable period (or portion thereof) ending after the Closing Date;
(sl) Enter into amend or modify any strategic alliance Material Contracts;
(m) make any capital expenditures except in the ordinary course of business, none of which shall be in excess of $25,000 individually or joint marketing arrangement $50,000 in the aggregate;
(n) declare, pay or agreementotherwise make any dividend or distribution (in cash or in any other form) to the Sellers; or
(to) Takeauthorize, propose or agree in writing or otherwise to take, take any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During Except as permitted or required by this Agreement or otherwise with the prior written consent of the Parent, during the period from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (except to the extent that NEON shall otherwise consent in writing)will, to carry on the Company's business and will cause each of its subsidiaries to, conduct its operations only in the usual, regular ordinary and ordinary usual course in substantially the same manner as heretofore conducted, to pay the debts of business consistent with past practice and Taxes of the Company when due, to pay or perform other obligations when duewill use all reasonable efforts, and will cause each of its subsidiaries to use its best efforts all reasonable efforts, to preserve intact the Company's present business organizationorganization of the Company and each of its subsidiaries, to keep available the services of the Company's its and their present officers and key employees employees, and to preserve the Company's good will of those having business relationships with customers, suppliers, distributors, licensors, licenseesit. Without limiting the generality of the foregoing, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event except as otherwise permitted or occurrence required by this Agreement or emergency not as set forth in the ordinary course of business SCHEDULE 6.1 of the Company, and any material event involving the Company. Except as expressly contemplated by this AgreementCOMPANY DISCLOSURE SCHEDULE, the Company shall will not, and will not permit any of its subsidiaries to, prior to the Effective Time, without the prior written consent of NEONthe Parent, which will not be unreasonably withheld, conditioned or delayed:
(a) Enter into adopt any commitment amendment to its articles of incorporation or transaction not in bylaws or comparable organizational documents or the ordinary course Rights Agreement or adopt a plan of business and consistent with past practice merger, consolidation, reorganization, dissolution or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000liquidation;
(b) Enter into sell, pledge or encumber any agreement with respect to the Company Intellectual Property with stock owned by it in any person or entity or with respect to the intellectual property of any person or entityits subsidiaries;
(ci) Transfer to any person issue, reissue or entity any rights to sell, or authorize the Company Intellectual Property;
issuance, reissuance or sale of (dA) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights additional shares of capital stock of any type class or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of businessVoting Debt, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, securities convertible into capital stock or property) in respect of any of its class or Voting Debt, or any rights, warrants or options to acquire any convertible securities or capital stock, or split, combine or reclassify any of its capital stock or issue or authorize other than the issuance of Common Shares, in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to the exercise of Options outstanding on the date hereof, or (B) any other securities in respect of, in lieu of of, or in substitution for shares of for, Common Shares or any other capital stock of any class or Voting Debt outstanding on the Companydate hereof or (ii) make any other changes in its capital structure (other than incurrence of indebtedness in the amount of up to Five Million Dollars ($5,000,000) in the aggregate under existing revolving credit facilities);
(d) declare, set aside or repurchasepay any dividend or other distribution (whether in cash, redeem securities or property or any combination thereof) in respect of any class or series of its capital stock other than between any of the Company and its subsidiaries;
(e) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, to redeem or purchase or propose the purchase ofotherwise acquire, any shares of its capital stock or securities convertible intostock, or subscriptions, rights, warrants or options to acquire, or any of its other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(if) Cause except as set forth in SCHEDULE 6.1 of the COMPANY DISCLOSURE SCHEDULE, increase in any manner the wages, salaries, bonus, compensation or permit other benefits of any amendments of its officers or employees or enter into, establish, amend or terminate any employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, termination, deferred compensation or other compensation or benefit plan, policy, agreement, trust, fund or arrangement with, for or in respect of, any shareholder, officer, director, other employee, agent, consultant or affiliate other than as required pursuant to the terms of agreements in effect on the date of this Agreement, or enter into or engage in any agreement, arrangement or transaction with any of its Certificate directors, officers, employees or affiliates except current compensation and benefits in the ordinary course of Incorporation or Bylawsbusiness, consistent with past practice;
(jg) Acquire or agree to acquire by merging or consolidating withacquire, or by purchasing any assets or equity securities ofmortgage, or by any other mannerencumber, any business or any corporationsell, partnership, association or other business organization or division thereof;
(k) Sellpledge, lease, license or otherwise dispose of any of its properties assets (including Intellectual Property or assetsresource rights), except in the ordinary course of business and consistent with past practicespractice;
(lh) Incur (i) incur, assume or prepay any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases long-term debt or incur or assume any short-term debt, except that the Company and its subsidiaries may incur or prepay debt, without prepayment penalty, in the ordinary course of businessbusiness in amounts and for purposes consistent with past practice under existing lines of credit, but in any event such incurrences, assumptions or prepayments may not exceed Five Million Dollars ($5,000,000) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend in the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or aggregate, (ii) to assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any third party except in the ordinary course of business consistent with past practice, (iii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (iv) make any loans, advances or capital contributions to, or investments in, any other employee person or entity, except payments made pursuant for loans, advances, capital contributions or investments in the ordinary course, consistent with past practice (in an amount not to standard written agreements outstanding on exceed Two Hundred Fifty Thousand Dollars ($250,000) in the date hereof;
(o) Adopt or amend any Employee Planaggregate), or enter into between any Employee Agreementwholly owned subsidiary of the Company and the Company or another wholly owned subsidiary of the Company, pay (v) authorize or agree to pay any special bonus make capital expenditures in excess of Five Hundred Thousand Dollars ($500,000), (vi) accelerate or special remuneration to any director or employee, or increase the salaries or wage rates delay collection of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (vii) change any method or principle of accounting in a manner that is inconsistent with past practice except to the extent required by GAAP as advised by the Company's regular independent accountants;
(i) commence, settle or compromise any suit or claim or threatened suit or claim where the amount involved is greater than Two Hundred Fifty Thousand Dollars ($250,000);
(j) other than in the ordinary course of businessbusiness consistent with past practice, (i) modify, amend or terminate any material contract, (ii) waive, release, relinquish or assign any material contract (or any of the rights of the Company or any of its subsidiaries thereunder), right or claim, or (iii) cancel, forgive or make any changes to the terms or collateral of any indebtedness owed to the Company or any of its subsidiaries; provided, however, that neither the Company nor any of its subsidiaries may under any circumstance waive or release any of its rights under any confidentiality or non-competition agreement to which it is a party;
(qk) Pay, discharge or satisfy, in an amount in excess of $30,000 file any income Tax Return (in any one case) or $50,000 (other than in the aggregateordinary course in a manner consistent with past practice), make any claimTax election not required by law, settle or compromise any Tax liability or obligation file any amended Tax Return or claim for refund;
(absolutel) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction except in the ordinary course of business consistent with past practice;
(m) acquire (by merger, consolidation, acquisition of liabilities reflected stock or reserved against assets, combination or other similar transaction) any corporation, partnership or other business organization or division or assets thereof;
(n) enter into any material contract or agreement other than in the Current Balance Sheetordinary course of business consistent with past practice;
(o) except as may be required as a result of a change in law or in GAAP, make any change in its methods of accounting, including Tax accounting policies and procedures;
(p) adopt or amend any resolution or agreement concerning indemnification of its directors, officers, employees or agents;
(q) transfer or license to any person or entity or otherwise extend, amend, modify, permit to lapse or fail to preserve any of the Intellectual Property material to the Company's or its subsidiaries' business as presently conducted or proposed to be conducted, other than nonexclusive licenses in the ordinary course of business consistent with past practice, or disclose to any person who has not entered into a confidentiality agreement any Trade Secrets;
(r) Make or change any material election fail to maintain its books, accounts and records in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesusual manner on a basis consistent with that heretofore employed;
(s) Enter establish any subsidiary or enter into any strategic alliance new line of business;
(t) make any changes to its current investment strategy, policy or joint marketing arrangement practices;
(u) discharge any obligations (including accounts payable) other than in the ordinary course of business consistent with past practice, or agreementdelay the making of any capital expenditures from the Company's current capital expenditure schedule;
(v) close or materially reduce the Company's or any subsidiary's activities, or other in the ordinary course of business consistent with past practices, effect any layoff or other Company-initiated personnel reduction or change, at any of the Company's or any subsidiary's facilities;
(w) except as specifically permitted pursuant to Section 6.10, take, or agree to commit to take, or fail to take any action that would result or is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, or would make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that would impair the ability of the Company to consummate the Merger in accordance with the terms hereof or materially delay such consummation; or
(tx) Takeauthorize, or agree in writing or otherwise to take, take any of the foregoing actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderprohibited under this Section 6.1.
Appears in 1 contract
Samples: Merger Agreement (BNS Holding, Inc.)
Conduct of Business of the Company. During the period Except as contemplated by this Agreement, from and after the date of this Agreement and continuing hereof until the earlier of the Closing Date or the termination of this Agreement or the Closingpursuant to Article 8, the Company agrees shall and Contributors shall cause the Company to, except as consented to in writing by Acquiror (except to the extent that NEON which consent shall otherwise consent in writingnot be unreasonably withheld, conditioned or delayed), to carry on the Company's (a) conduct its business in the usual, ordinary and regular and ordinary course in substantially the same manner as heretofore conductedconducted (including any conduct that is reasonably related, to pay the debts and Taxes of the Company when duecomplementary or incidental thereto), to pay or perform other obligations when due, and to (b) use its best commercially reasonable efforts to preserve substantially intact the Company's present its goodwill and business organization, keep available the services of the Company's present officers organization and key employees and to preserve the Company's present commercial relationships with key Persons with whom it does business (including customers, Dealers, suppliers, distributors, licensors, licensees, employees and others having material business dealings with it), (c) use commercially reasonable efforts to maintain its material assets and properties, (d) use commercially reasonable efforts to perform in all material respects and materially comply with the goal of preserving unimpaired the Company's goodwill Company Material Contracts and ongoing businesses at the Closing. The Company shall promptly notify NEON of materially comply with all applicable Laws and Orders and (e) not do any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEONfollowing:
(ai) Enter into take or omit to take any commitment or transaction not action that would reasonably be expected to result in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000a Company Material Adverse Effect;
(bii) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside declare or pay any dividends on a dividend on, or make any other distributions (whether in cash, stock or property) in respect of of, its equity securities except Tax distributions by the Company to Contributors and other dividends declared and paid in a manner consistent with past practice;
(iii) issue, sell or deliver any capital stock, membership interests or other equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, membership interests or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible equity securities;
(iiv) Cause effect any recapitalization, reclassification, stock or permit any amendments to its Certificate of Incorporation unit dividend, stock or Bylaws;unit split or like change; 35
(jv) Acquire acquire or agree to acquire in any manner (whether by merging merger or consolidating withconsolidation, the purchase of an equity interest in or by purchasing any a material portion of the assets of or equity securities of, or by any other manner, otherwise) any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose thereof of any other Person other than the acquisition of its properties or assets, except assets in the ordinary course of business and consistent with past practices;
(lvi) Incur adopt any amendments to its Governing Documents;
(vii) sell, lease, assign, license, abandon, allow to lapse, transfer or otherwise dispose of, or mortgage, pledge or permit the incurrence of any Lien on, any material assets, including Company Real Property, other than sales of products, inventory or services in the ordinary course of business consistent with past practice;
(viii) authorize any new capital expenditures or commitments exceeding $500,000 per expenditure or commitment or $2,500,000 in the aggregate for all such expenditures and commitments, except for capital expenditures incurred in the ordinary course of business;
(ix) except in the ordinary course of business, hire any executives or terminate the services of any existing executives, increase, accelerate or provide for additional compensation, benefits (fringe or otherwise) or other rights to any current or former employee, adopt, amend, terminate or otherwise become liable with respect to any Employee Benefit Plan that is or would be a Company Benefit Plan, or agree to do any of the foregoing;
(x) except in the ordinary course of business, grant, agree to grant, or amend or modify any grant or agreement to grant, any severance, termination or retention payment to any current or former employee;
(xi) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(xii) incur or permit to exist any indebtedness for borrowed money in excess of $30,000 260,000,000 in the aggregate (other than increases under existing equipment leases which shall be understood to exclude, for the avoidance of doubt, capital lease and operating lease obligations, obligations of variable interest entities for which the Company has no obligation and trade payables, in each case, whether or not such obligations are required to be accounted for as debt);
(xiii) change its accounting policies or procedures except to the extent required to conform with GAAP, or change its fiscal year; with past practice; payee;
(xiv) settle or compromise any pending Proceedings except in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;business consistent
(mxv) Grant terminate or cancel any loans to others material insurance policy naming the Company as its beneficiary or purchase debt securities of others or amend the terms of any outstanding loan agreement;a loss
(nxvi) Grant any severance materially change the nature or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, scope of its business or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates a new line of its employees;business; 36
(pxvii) Revalue materially modify, change, renew, extend or terminate any of its assetsCompany Material Contract, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than renewals or extensions in the ordinary course of business;
(qxviii) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), 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 of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make make or change any material Tax election in respect or Tax method of Taxes, adopt or change any accounting method in respect of Taxesaccounting, enter into any agreement relating to Taxes, including closing agreementagreements with Taxing Authorities, or settle or compromise any material Tax claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementliability; or
(txix) Take, or agree in writing or otherwise to take, any of the actions described do anything contained in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderthis clause (e).
Appears in 1 contract
Samples: Contribution Agreement
Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the ClosingEffective Time, the Company agrees (to operate the business of the Company, except to the extent that NEON Holdings shall otherwise consent in writing)provide its prior written consent, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this AgreementFurther, the Company shall not, without the prior written consent of NEONHoldings (which shall not be unreasonably (from the perspective of Holdings) withheld, conditioned or delayed), take any of the following actions, except those actions necessary or advisable in order to consummate the Merger:
(a) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(b) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure ScheduleSchedules;
(fb) Commence commence or settle any litigationlitigation other than to enforce the Company’s rights hereunder or under the Voting Agreement;
(gc) Declaredeclare, set aside aside, or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stockCommon Stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Companystock;
(hd) Issueissue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares equity securities of its capital stock or interests in the Company or any securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(ie) Cause cause or permit any amendments to its Certificate of Incorporation or Bylawsthe Charter Documents;
(jf) Acquire acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(kg) Sellsell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(lh) Incur incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersthird parties or enter into any operating leases other than indebtedness for expenses incurred in the ordinary course of business (provided such expenses do not exceed $25,000.00) or in connection with the transactions contemplated by this Agreement;
(mi) Grant grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreementothers;
(nj) Grant adopt any severance employee benefit, multi-employer or termination pay (i) to pension plans, hire any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plannew employee, or enter into any Employee Agreementemployment contract, pay or agree to pay any special bonus or special remuneration to any director director, officer or employee, or increase the salaries grant any stock-related award (whether payable in cash, shares or wage rates of its employeesotherwise);
(pk) Revalue except as required by GAAP, revalue any of its assets, including without limitation writing down the value of inventory assets (whether tangible or writing off notes or accounts receivable other than in the ordinary course of businessintangible);
(ql) Paypay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction except in the ordinary course of business of liabilities reflected (provided such claim, liability or reserved against in the Current Balance Sheetobligations does not exceed $25,000.00);
(rm) Make make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(sn) Enter into terminate or waive any strategic alliance right or joint marketing arrangement rights which individually or agreement; orin the aggregate could reasonably be expected to be material in value to the Company, except as contemplated in the Voting Agreement or the Staktek Consent;
(to) Taketake, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s4.1(a) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderthrough 4.1(n) hereof.
Appears in 1 contract
Conduct of Business of the Company. During (a) Unless the Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the ClosingClosing (the “Interim Period”), except as expressly contemplated by this Agreement the Company agrees shall (except to the extent that NEON shall otherwise consent i) conduct its business, in writing)all material respects, to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of consistent with past practice, (ii) comply with all Laws applicable to the CompanyCompany and its business, assets and employees, and any (iii) take all reasonable measures necessary or appropriate to preserve intact, in all material event involving respects, its business organization, to keep available the Company. Except services of its managers, directors, officers, employees and consultants, to maintain, in all material respects, its existing relationships with all Top Customers and Top Suppliers, and to preserve the possession, control and condition of its material assets, all as expressly consistent with past practice.
(b) Without limiting the generality of Section 6.2(a) and except as contemplated by the terms of this Agreement, during the Company shall notInterim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter into amend, waive or otherwise change, in any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000respect, its Organizational Documents;
(bii) Enter authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any agreement of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entitysuch securities;
(ciii) Transfer split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any person or entity any rights to the Company Intellectual Propertyof its securities;
(div) Enter into or amend any Contract pursuant to which any other party is granted marketingincur, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend create, assume, prepay or otherwise modify become liable for any Indebtedness (directly, contingently or agree to do sootherwise), except in outside the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 10,000 (other than increases under existing equipment leases individually or in the ordinary course of business) aggregate), make a loan or advance to or investment in any third party, or guarantee or endorse any such indebtedness Indebtedness, Liability or issue or sell obligation of any debt securities or guarantee any debt securities of othersPerson;
(mv) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the wages, salaries or wage rates compensation of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable employees other than in the ordinary course of business;
, consistent with past practice, and in any event not in the aggregate by more than five percent, or make or commit to make any bonus payment (qwhether in cash, property or securities) Payto any employee, discharge or satisfymaterially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in an amount in excess of $30,000 (in any one case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), each case other than as required by applicable Law, pursuant to the payment, discharge terms of any Company Benefit Plans or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheetconsistent with past practice;
(rvi) Make make or change rescind any material election in respect of relating to Taxes, adopt settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or change any accounting method in respect of controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with IFRS;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any of the Company Registered IP, Company Licensed IP or other Company IP, or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract outside of the ordinary course of business or enter into any closing agreementContract (A) involving amounts reasonably expected to exceed $10,000 per year or $50,000 in the aggregate, settle any claim (B) that would be a Company Material Contract or assessment in respect (C) with a term longer than one year that cannot be terminated without payment of Taxes, a material penalty and upon notice of sixty days or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxesless;
(six) Enter fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any strategic alliance new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or joint marketing replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage as are currently in effect;
(xii) revalue any of its material assets or make any change in accounting methods, principles or practices, except to the extent required to comply with IFRS and after consulting with the Company’s outside auditors;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $10,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) make capital expenditures in excess of $10,000 (individually for any project (or set of related projects) or $25,000 in the aggregate);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $10,000 individually or $25,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or agreementimpair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or
(txxiii) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During the period Except as contemplated by this Agreement, from and after the date of this Agreement and continuing hereof until the earlier of the Closing Date or the termination of this Agreement or the Closingpursuant to Article 8, the Company agrees shall and Contributor shall cause the Company to, except as consented to in writing by Acquiror (except to the extent that NEON which consent shall otherwise consent in writingnot be unreasonably withheld, conditioned or delayed), to carry on the Company's (a) conduct its business in the usual, ordinary and regular and ordinary course in substantially the same manner as heretofore conductedconducted (including any conduct that is reasonably related, to pay the debts and Taxes of the Company when duecomplementary or incidental thereto), to pay or perform other obligations when due, and to (b) use its best commercially reasonable efforts to preserve substantially intact the Company's present its goodwill and business organization, keep available the services of the Company's present officers organization and key employees and to preserve the Company's present commercial relationships with key Persons with whom it does business (including customers, Dealers, suppliers, distributors, licensors, licensees, employees and others having material business dealings with it), (c) use commercially reasonable efforts to maintain its material assets and properties, (d) use commercially reasonable efforts to perform in all material respects and materially comply with the goal of preserving unimpaired the Company's goodwill Company Material Contracts and ongoing businesses at the Closing. The Company shall promptly notify NEON of materially comply with all applicable Laws and Orders and (e) not do any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of NEONfollowing:
(ai) Enter into take or omit to take any commitment or transaction not action that would reasonably be expected to result in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000a Company Material Adverse Effect;
(bii) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside declare or pay any dividends on a dividend on, or make any other distributions (whether in cash, stock or property) distribution in respect of of, its equity securities except Tax distributions by the Company to Contributor;
(iii) issue, sell or deliver any capital stock, membership interests or other equity securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(h) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, membership interests or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible equity securities;
(iiv) Cause effect any recapitalization, reclassification, stock or permit any amendments to its Certificate of Incorporation unit dividend, stock or Bylawsunit split or like change;
(jv) Acquire acquire or agree to acquire in any manner (whether by merging merger or consolidating withconsolidation, the purchase of an equity interest in or by purchasing any a material portion of the assets of or equity securities of, or by any other manner, otherwise) any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose thereof of any other Person other than the acquisition of its properties or assets, except assets in the ordinary course of business and consistent with past practices;
(lvi) Incur adopt any indebtedness for borrowed money in excess amendments to its Governing Documents;
(vii) sell, lease, assign, license, abandon, allow to lapse, transfer or otherwise dispose of, or mortgage, pledge or permit the incurrence of $30,000 (any Lien on, any material assets, including Real Property, other than increases under existing equipment leases sales of products, inventory or services in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of othersbusiness consistent with past practice;
(mviii) Grant authorize any loans to others new capital expenditures or purchase debt securities of others commitments exceeding $500,000 per expenditure or amend commitment or $2,500,000 in the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee aggregate for all such expenditures and commitments, except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than for capital expenditures incurred in the ordinary course of business;
(qix) Pay, discharge or satisfy, in an amount in excess of $30,000 (in any one case) or $50,000 (in except as expressly provided pursuant to the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction Secondment Agreement and in the ordinary course of business consistent with past practice, hire any executives or terminate the services of liabilities reflected any existing executives, increase, accelerate or reserved against in provide for additional compensation, benefits (fringe or otherwise) or other rights to any current or former employee, adopt, amend, terminate or otherwise become liable with respect to any Employee Benefit Plan, or agree to do any of the Current Balance Sheetforegoing;
(rx) Make except as provided pursuant to the Secondment Agreement, grant, agree to grant, or amend or modify any grant or agreement to grant, any severance, termination or retention payment to any current or former employee;
(xi) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization;
(xii) incur or permit to exist any indebtedness for borrowed money (which shall be understood to exclude, for the avoidance of doubt, capital lease and operating lease obligations, obligations of variable interest entities for which the Company has no obligation and trade payables, in each case, whether or not such obligations are required to be accounted for as debt);
(xiii) change its accounting policies or procedures except to the extent required to conform with GAAP, or change its fiscal year;
(xiv) settle or compromise any pending Proceedings except in the ordinary course of business consistent with past practice;
(xv) terminate or cancel any material insurance policy naming the Company as its beneficiary or a loss payee;
(xvi) materially change the nature or scope of its business or enter into a new line of business;
(xvii) materially modify, change, renew, extend or terminate any Company Material Contract, other than renewals or extensions in the ordinary course of business;
(xviii) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of TaxesTax election, enter into any agreement relating to Taxes, including closing agreementagreements with Taxing Authorities, or settle or compromise any material Tax claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementliability; or
(txix) Take, or agree in writing or otherwise to take, any of the actions described do anything contained in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderthis clause (e).
Appears in 1 contract
Samples: Contribution Agreement (Sunoco LP)
Conduct of Business of the Company. During (a) Unless the period from Purchaser shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the ClosingAncillary Documents or as set forth on Schedule 5.2, the Company agrees shall (except i) conduct its business, in all material respects, in the ordinary course of business, (ii) comply, in all material respects, with all Laws applicable to the extent that NEON shall otherwise consent in writing)Company and its businesses, to carry on the Company's business in the usual, regular assets and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when dueemployees, and to (iii) use its best commercially reasonable efforts to preserve intact the Company's present intact, in all material respects, its business organization, to keep available the services of the Company's present officers and key its managers, directors, officers, employees and consultants, and to preserve the Company's relationships with customerspossession, suppliers, distributors, licensors, licensees, control and others having business dealings with itcondition of its material assets, all as consistent with past practice.
(b) Without limiting the goal generality of preserving unimpaired the Company's goodwill Section 5.2(a) and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except except as expressly contemplated by the terms of this Agreement, the Company shall notAncillary Documents or as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of NEONthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not:
(ai) Enter amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any commitment of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction not with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $100,000 individually or $250,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business and consistent with past practice business), or guarantee or endorse any commitment Indebtedness, Liability or transaction obligation of any type whatsoever involving individual expense Person in excess of $30,000 and aggregate expense 100,000 individually or $250,000 in excess of $100,000the aggregate;
(bv) Enter into any agreement with respect to increase the Company Intellectual Property with any person wages, salaries or entity or with respect to the intellectual property compensation of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any its employees other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except than in the ordinary course of business, or violate the terms of, and in any of the Contracts set forth or described event not in the Company Disclosure Schedule;
aggregate by more than five percent (f) Commence or settle any litigation;
(g) Declare5%), set aside or pay any dividends on or make or commit to make any other distributions bonus payment (whether in cash, stock property or propertysecurities) to any employee, or materially increase other benefits of employees generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the terms of its capital stockany Company Benefit Plans or in the ordinary course of business;
(vi) make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or splitmake any material change in its accounting or Tax policies or procedures, combine in each case except as required by applicable Law or reclassify in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP, Company Licensed IP or other Company IP (excluding non-exclusive licenses of Company IP to Company customers in the ordinary course of business), or disclose to any Person who has not entered into a confidentiality agreement any trade secrets or other material proprietary information;
(viii) terminate, or waive or assign any material right under, any Company Material Contract or enter into any Contract that would be a Company Material Contract, in any case outside of the ordinary course of business;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(x) establish any Subsidiary or enter into any new line of business;
(xi) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or applicable Law;
(xiii) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, unless such amount has been reserved in the Company Financials;
(xiv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities;
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xvi) make capital stock expenditures in excess of $100,000 individually for any project (or issue set of related projects) or authorize $250,000 in the issuance aggregate;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xviii) voluntarily incur any Liability in excess of $100,000 individually or $250,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any other material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of equity securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of the capital stock of the Company;
(hxxi) Issue, grant, deliver or sell or authorize or propose accelerate the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments collection of any character obligating it to issue trade receivables or purchase any such shares delay the payment of trade payables or other convertible securities;
(i) Cause or permit any amendments to its Certificate of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practices;
(l) Incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others;
(m) Grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, or enter into any Employee Agreement, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates of its employees;
(p) Revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable liabilities other than in the ordinary course of business;
(qxxii) Payenter into, discharge amend, waive or satisfyterminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in an amount in excess of $30,000 (in any one each case) or $50,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction provided in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(r) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(s) Enter into any strategic alliance or joint marketing arrangement or agreementbusiness); or
(tc) Take, authorize or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent the Company from performing or cause the Company not to perform its covenants hereunderforegoing actions.
Appears in 1 contract
Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the The Company agrees (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present its current business organizationorganizations, keep available the services of the Company's present its current officers and key employees and preserve the Company's its relationships consistent with past practice with customers, suppliers, distributors, licensors, licensees, suppliers and others having business dealings with it, all with it to the goal of preserving unimpaired the Company's end that its goodwill and ongoing businesses business shall be unimpaired in all material respects at the ClosingEffective Time. The Company shall promptly notify NEON of any event or occurrence or emergency not in Without limiting the ordinary course of business generality of the Companyforegoing, and any material event involving prior to the Company. Except Effective Time, except as expressly contemplated otherwise provided by the terms of this Agreement, the Company shall not, without the prior written consent of NEONAcquiror, which consent may not be unreasonably withheld:
(ai) Enter into any commitment or transaction not in the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000;
(bA) Enter into any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the intellectual property of any person or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of business, or violate the terms of, any of the Contracts set forth or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declaredeclare, set aside or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, or (B) split, combine or reclassify any of its capital stock or or, except pursuant to the exercise of Options existing on the date hereof, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock of the Company, or repurchaseother equity interests or (C) purchase, redeem or otherwise acquire, directly acquire or indirectly, amend any shares of the capital stock or other equity interests of the CompanyCompany or any other securities thereof or any rights, warrants or options to acquire any such shares, interests or other securities;
(hii) Issueissue, grantdeliver, deliver sell, pledge or sell otherwise encumber or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, amend any shares of its capital stock stock, any other voting securities or any securities convertible into, or subscriptions, any rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares shares, interests, voting securities or convertible securities (other convertible securitiesthan the issuance of Company Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms);
(iiii) Cause amend its Articles of Incorporation, Bylaws or permit any amendments to its Certificate of Incorporation other comparable charter or Bylawsorganizational documents;
(jiv) Acquire acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any all or substantially all of the assets or equity securities of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereofthereof or (B) any assets except (x) purchases of inventory, furnishings and equipment in the ordinary course of business consistent in nature and amount with past practice, (y) expenditures listed on Schedule 7.1 or (z) other expenditures in an amount not to exceed $2,000 in any single instance or $25,000 in the aggregate;
(kv) Sellsell, lease, license license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets, except sales in the ordinary course of business and consistent with past practicespractice;
(lvi) Incur (A) other than (1) ordinary course working capital borrowings, of which not more than $3 million may be outstanding at any one time plus amounts necessary to make payments to holders of options upon cancellation as is provided for in Section 8.6 of this Agreement, (2) borrowings required to finance specific projects listed on Schedule 7.1, incur any indebtedness for borrowed money in excess of $30,000 (other than increases under existing equipment leases in the ordinary course of business) or guarantee any such indebtedness or of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of others;
(m) Grant another person, enter into any loans "keep well" or other agreement to others or purchase debt securities maintain any financial statement condition of others or amend the terms of any outstanding loan agreement;
(n) Grant any severance or termination pay (i) to any director or officer or (ii) to any other employee except payments made pursuant to standard written agreements outstanding on the date hereof;
(o) Adopt or amend any Employee Plan, another person or enter into any Employee Agreementarrangement having the economic effect of any of the foregoing or (B) make any loans, pay advances or agree to pay any special bonus or special remuneration to any director or employeecapital contributions to, or increase the salaries or wage rates of its employees;
(p) Revalue investments in, any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other person other than advances to employees, suppliers or customers in the ordinary course of businessbusiness consistent with past practice;
(qvii) Paypay, discharge discharge, settle or satisfysatisfy any material claims, in an amount in excess of $30,000 (in any one case) liabilities or $50,000 (in the aggregate), any claim, liability or obligation obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge discharge, settlement or satisfaction satisfaction, (A) in the ordinary course of business consistent with past practice or (B) in accordance with their terms of liabilities reflected or reserved against in the Current Balance Sheetmost recent financial statements (or the notes thereto) of the Company included in the Company SEC Documents filed and publicly available prior to the date of this Agreement or incurred in the ordinary course of business consistent with past practice since the date of such financial statements or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party;
(rviii) Make except as required to comply with Applicable Law, (A) adopt, enter into, terminate or change amend any material election Employee Benefit Plan or other arrangement for the benefit or welfare of any director, officer or current or former employee including any collective bargaining agreements or arrangements, (B) increase in respect any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases or bonuses as contractually required pursuant to agreements disclosed in the Company SEC Documents filed and publicly available prior to the date of Taxesthis Agreement or in Schedule 5.8), adopt grant any severance or change any accounting method in respect of Taxestermination pay to, or enter into any closing employment or severance agreement with any director, officer or other employee of the Company or, (C) pay any benefit subject to the requirements of ERISA that is not provided for under any Employee Benefit Plan, (D) except for payments or awards in cash permitted by clause (B), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Employee Benefit Plans or agreements or awards made thereunder) (E) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, settle contract or arrangement or Employee Benefit Plan other than in the ordinary course of business consistent with past practice, (F) unless requested to do so by Acquiror, which the Company agrees to do following the acquisition of Company Common Stock in the Offer if so requested by Acquiror, take any claim action to accelerate the payment or assessment in respect vesting of Taxescompensation or benefits under any employee plan, agreement, contract or arrangement or Employee Benefit Plan, or consent to (G) establish, adopt, enter into, or make any extension new grants or waiver awards under or amend, any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees, including without limitation, the limitation period applicable to any claim or assessment in respect of TaxesEmployees;
(six) Enter into except in the ordinary course of business, modify, amend or terminate any strategic alliance contract or joint marketing arrangement agreement set forth in the Company SEC Documents to which the Company is a party or agreement; orwaive, release or assign any material rights or claims;
(tx) Takeconduct its business in a manner or take, or agree in writing or otherwise cause to takebe taken, any of the actions described in Sections 5.1(a)-(s) above, or any other action that would prevent or materially delay the Company or Acquiror from performing consummating the transactions contemplated hereby in accordance with the terms of this Agreement (regardless of whether such action would otherwise be permitted or cause not prohibited hereunder), including, without limitation, any action which may materially limit the ability of the Company not or Acquiror to perform its covenants hereunderconsummate the transactions contemplated hereby as a result of antitrust or other regulatory concerns; or
(xi) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated without notice to Acquiror, except in the ordinary and usual course of business;
(xii) make or amend any federal, state, or local Tax election, agree to waive or extend any statute of limitations, or resolve or agree to resolve any audit or proceeding relating to Taxes that is referenced in section 5.10 of this Agreement; or
(xiii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business of the Company. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees Except (except to the extent that NEON shall otherwise consent in writing), to carry on the Company's business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and to use its best efforts to preserve intact the Company's present business organization, keep available the services of the Company's present officers and key employees and preserve the Company's relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving unimpaired the Company's goodwill and ongoing businesses at the Closing. The Company shall promptly notify NEON of any event or occurrence or emergency not in the ordinary course of business of the Company, and any material event involving the Company. Except i) as expressly contemplated by this Agreement, (ii) as agreed in writing by the Purchaser, or (iii) for the consummation of the financing of the transactions contemplated hereby pursuant to and in accordance with the terms of the Financing Documents, during the period from the date hereof to the time persons designated or elected by the Purchaser or any of its respective affiliates shall constitute a majority of the Company Board, neither the Company nor any of its Subsidiaries will conduct its operations otherwise than in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the time persons designated or elected by the Purchaser or any of the respective affiliates shall constitute a majority of the Board, the Company will not, nor will it permit its Subsidiaries, without the prior written consent of NEONthe Purchaser, to:
(a) Enter into any commitment amend or transaction not in propose to amend its Certificate of Incorporation or By-Laws or the ordinary course of business and consistent with past practice or any commitment or transaction of any type whatsoever involving individual expense in excess of $30,000 and aggregate expense in excess of $100,000Rights Agreement;
(bi) Enter into any agreement with respect to issue, reissue or sell, or authorize the Company Intellectual Property with any person issuance, reissuance or entity or with respect to the intellectual property sale of (A) additional shares of capital stock of any person class, or entity;
(c) Transfer to any person or entity any rights to the Company Intellectual Property;
(d) Enter securities convertible into or amend any Contract pursuant to which any other party is granted marketing, distribution or similar rights capital stock of any type or scope with respect to any products or technology of the Company or the Subsidiary;
(e) Amend or otherwise modify (or agree to do so), except in the ordinary course of businessclass, or violate the terms ofany rights, warrants or options to acquire any of the Contracts set forth convertible securities or described in the Company Disclosure Schedule;
(f) Commence or settle any litigation;
(g) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize other than the issuance of Common Shares (and the related Rights), in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to the exercise or conversion of Options outstanding on the date hereof, or (B) any other securities in respect of, in lieu of of, or in substitution for shares of for, Common Shares or any other capital stock of any class outstanding on the Company, date hereof or repurchase, redeem or otherwise acquire, directly or indirectly, (ii) make any shares of the other changes in its capital stock of the Companystructure;
(hc) Issuesplit, grant, deliver combine or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or securities convertible intoproperty or any combination thereof) in respect of its capital stock, or subscriptions, rights, warrants redeem or options to acquire, otherwise acquire any of its securities or other agreements or commitments any securities of any character obligating it to issue or purchase any such shares or other convertible securitiesits Subsidiaries;
(d) (i) Cause incur or permit assume any amendments long-term or short-term debt or issue any debt securities except for borrowings under existing lines of credit in the ordinary course of business consistent with past practice and in amounts not material to the Company and its Certificate Subsidiaries taken as a whole; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of Incorporation or Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(k) Sell, lease, license or otherwise dispose of any of its properties or assets, person except in the ordinary course of business and consistent with past practices;
practice and in amounts not material to the Company and its Subsidiaries, taken as a whole, and except for obligations of wholly owned Subsidiaries of the Company to the Company or to other wholly owned Subsidiaries of the Company; (liii) Incur make any indebtedness for borrowed money in excess of $30,000 loans, advances or capital contributions to, or investments in, any other person (other than increases under existing equipment leases to wholly owned Subsidiaries of the Company or customary loans or advances to employees in the ordinary course of businessbusiness consistent with past practice and in amounts not material to the maker of such loan or advance) or guarantee make any change in its existing borrowing or lending arrangements for or on behalf of any such indebtedness person, whether pursuant to an employee benefit plan or issue otherwise; (iv) pledge or sell otherwise encumber shares of capital stock of the Company or any debt securities of its Subsidiaries; or guarantee (v) mortgage or pledge any debt securities of othersits material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon;
(me) Grant adopt a plan of complete or partial liquidation or adopt resolutions providing for the complete or partial liquidation, dissolution, consolidation, merger, restructuring or recapitalization of the Company or any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreementits Subsidiaries;
(nf) Grant increase in any manner the compensation or fringe benefits payable or to become payable of any director, officer or, employee, except, in the case of employees, only for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, or pay or award any benefit not required by any existing plan or arrangement to any officer, director or employee (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units pursuant to the Stock Plans or otherwise), or grant any severance or termination pay (i) to any officer, director or officer or (ii) to any other employee except payments made pursuant to standard written of the Company or any of its Subsidiaries (other than as required by existing agreements outstanding on or policies in Section 6.01 of the date hereof;
(o) Adopt or amend any Employee PlanCompany Disclosure Schedule), or enter into any Employee Agreementemployment or severance agreement with any director, pay officer or agree to pay other employee of the Company or any special bonus of its Subsidiaries or special remuneration to any director or employeeestablish, adopt, enter into, amend, or increase waive any performance or vesting criteria under any plan for the salaries benefit or wage rates welfare of any current or former directors, officers or employees of the Company or its employeesSubsidiaries or their beneficiaries or dependents (any of the foregoing being an "Employee Benefit Arrangement"), except, in each case, to the extent required by applicable law or regulation;
(pg) Revalue acquire, sell, transfer, lease, encumber or dispose of any assets outside the ordinary course of business consistent with past practice or any assets which in the aggregate are material to the Company and its Subsidiaries taken as a whole, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice which would be material to the Company and its Subsidiaries taken as a whole;
(h) except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(i) revalue in any material respect any of its assets, including including, without limitation limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of businessbusiness consistent with past practice;
(qi) Payacquire (by merger, discharge consolidation, or satisfyacquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement other than in an amount the ordinary course of business consistent with past practice which would be material to the Company and its Subsidiaries taken as a whole; (iii) authorize any new capital expenditure or expenditures which, individually, is in excess of $30,000 (in any one case) or $50,000 (or, in the aggregate, are in excess of $100,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited hereunder;
(k) make any Tax election (unless required by law), settle or compromise any claimTax liability of the Company or any of its Subsidiaries or any pending or threatened suit, action or claim relating to any potential or actual Tax liability of the Company or obligation any of its Subsidiaries, change any method of accounting for Tax purposes or file (other than in a manner consistent with past practice) any Tax Return;
(l) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its Subsidiaries or incurred in the Current Balance Sheetordinary course of business consistent with past practice;
(rm) Make permit any insurance policy naming it as a beneficiary or change a loss payable payee to be canceled or terminated without notice to the Purchaser except in the ordinary course of business and consistent with past practice unless the Company shall have obtained a comparable replacement policy;
(n) settle or compromise any pending or threatened suit, action or claim (i) relating to the transactions contemplated hereby, (ii) involving Fremont Acquisition Company III, LLC and/or any of its affiliates ("Fremont") and the Company and/or any of its affiliates, (iii) involving Golden Cycle, LLC and/or any of its affiliates ("Golden Cycle") and the Company and/or any of its affiliates, or (iv) any other pending or threatened material election suit, action or claim other than in respect the ordinary course of Taxes, adopt or change any accounting method in respect of Taxes, business;
(o) enter into any closing agreement, settle any claim or assessment in respect agreement of Taxes, or consent a nature that would be required to any extension or waiver of be filed as an exhibit to Form 10-K under the limitation period applicable to any claim or assessment in respect of TaxesExchange Act;
(sp) Enter into any strategic alliance or joint marketing arrangement or agreement; or
(t) Taketake, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a)-(s6.1
(a) above, through 6.1(o) or any other action that which would prevent make any of the representations or warranties of the Company from performing contained in this Agreement untrue or cause incorrect as of the Company date when made or would result in any of the Tender Offer Conditions not to perform its covenants hereunderbeing satisfied.
Appears in 1 contract
