Conduct of Business Pending the Closing Date. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 10.1 or the Closing, except (w) as may be required by a Governmental Entity or Law, (x) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (y) as otherwise expressly provided or expressly permitted in this Agreement and (z) as provided in Section 6.3 of the Company Disclosure Letter, the Company shall (and the Sellers shall cause the Company to) conduct its and the Company Subsidiaries’ businesses in all material respects in the Ordinary Course of Business, and in accordance, in all material respects, with all applicable Laws and use reasonable best efforts to preserve the material assets and properties of the Company and its Subsidiaries in good repair and condition, keep available the services of its present officers, and, in the Ordinary Course of Business, preserve the current material business relationships of the Company and its Subsidiaries. Without limiting the generality of the foregoing, except (1) as may be required by a Governmental Entity or Law, (2) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (3) as otherwise specifically provided in this Agreement and (4) as provided in Section 6.3 of the Company Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company agrees not to, and the Sellers agree not to permit the Company to, take any of the following actions (and to cause the Company’s Subsidiaries not to take such actions): (a) amend its certificate of incorporation or its by-laws, articles of organization, limited liability company agreement, partnership agreements or equivalent organizational documents; (b) (i) authorize for issuance, issue, deliver, sell, pledge, transfer, grant, dispose of or encumber any shares of capital stock or other equity or voting interests of the Company or any of its Subsidiaries or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of the Company Shares or the value of the Company or any of its Subsidiaries or any part thereof, provided, however, that none of the foregoing shall prohibit (A) the issuance of Company Shares upon the conversion or exercise of convertible securities outstanding as of the date of this Agreement or (B) transactions involving solely securities of a wholly owned Subsidiary of the Company among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, recapitalization or other similar transaction, 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, except for any such transaction by a wholly-owned Subsidiary of the Company which remains a wholly-owned Subsidiary of the Company after consummation of such transaction or (iii) enter into any amendment of any term of any of its outstanding securities. (c) (i) except to the extent required under existing plans or arrangements set forth in Section 4.9(a) of the Company Disclosure Letter, or as otherwise required by applicable Law, increase any compensation or benefit to, or, except in connection with the hiring of new Company Personnel in the Ordinary Course of Business, enter into or amend any employment or severance agreement with, any officer, director or other Company Personnel, (ii) grant any bonuses to any Company Personnel that would not otherwise be paid at or prior to the Closing, (iii) enter into, adopt, modify or amend any Company Pension Plan, Company Benefit Plan or Company Other Plan (including any stock option, stock benefit or stock purchase plan) or, except as contemplated by this Agreement, accelerate the vesting of any compensation (including equity based awards) for the benefit of any Company Personnel or grant or amend any award under any Company Pension Plan, Company Benefit Plan or Company Other Plan (including the grant of any equity or equity based or related compensation), (iv) provide any funding for any rabbi trust or similar arrangement or take any other action to fund or secure the payment of any compensation or benefit, (v) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than as required under a Company Contract with a Key Employee set forth in Section 4.9(a) of the Company Disclosure Letter or, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the Ordinary Course of Business), or (vi) terminate any Key Employee other than for cause (including misconduct or breach of company policy); (d) (i) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company to another Subsidiary of the Company or to the Company), or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any such stock or other securities; (e) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Lien (except Permitted Liens), other than, in the case of both (i) and (ii), in the Ordinary Course of Business; (f) enter into any Contract that is a Sponsorship Agreement or any Contract with a Card Association, provider of front end or back end payment processing services, or with a payment gateway, or modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, or waive, release or assign, in a manner which is adverse to the Company in any material respect, any rights under any Primary Business Contract; (g) (i) modify, amend or change any of the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines for customers in a manner which is less restrictive than those in place as of the date hereof or (ii) other than in compliance with the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines (including the exceptions criteria and process contemplated thereby) as implemented in the Ordinary Course of Business, authorize any new customer to process transactions through the Company’s or the Company Subsidiaries’ processing system or otherwise enter into a customer agreement or relationship with any new customer; (h) (i) enter into any contract that, if entered into as of or prior to the date hereof, would constitute a Company Contract pursuant to clauses (i), (ii), (ix) or (xii) of Section 4.14(a) or otherwise enter into any lease with respect to any material assets that is not otherwise terminable without penalty on ninety (90) days’ notice or less or (ii) except in the Ordinary Course of Business, modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)) or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed by clause (k) below) in a manner that is adverse to the Company in any material respect, provided that in no event shall the Company enter into any contract or group of related contracts which require or involve the payment by the Company or any of the Company Subsidiaries on an annual basis of more than $1,000,000 not contemplated by the budget provided by the Company to the Purchaser (excluding any one-time signing bonuses payable in connection with new partner agreements in the Ordinary Course of Business), or (ii) waive, release or assign, in any respect in a manner which is adverse to the Company in any material respect, any rights under any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)); (i) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk); (j) make or agree to make any loans, advances or capital contributions to, or other investments in, any other Person, except in the Ordinary Course of Business; (k) make any capital expenditures except in accordance with the budget provided by the Company to the Purchaser, other than capital expenditures not otherwise contemplated by such budget that do not exceed $500,000 individually or $2,000,000 in the aggregate; (l) (i) merge with, enter into a consolidation with or otherwise acquire an interest of 50% or more of the outstanding equity interests in any Person or acquire a substantial portion of the assets or business of any Person (or any division or line of business thereof), (ii) otherwise acquire (including, through leases, subleases and licenses of real property) any assets, except, in the case of this clause (ii), in the Ordinary Course of Business, or (iii) enter into any new line of business; (m) create, incur or assume any indebtedness for borrowed money, or issue any debt securities or any right to acquire debt securities, assume, guarantee, or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person, except (i) for indebtedness incurred in the Ordinary Course of Business under the Company’s existing borrowing arrangements which at any time shall not exceed $10,000,000, (ii) for any indebtedness solely involving the Company and/or direct or indirect wholly owned Subsidiaries of the Company, (iii) indebtedness for borrowed money incurred to replace, renew, extend, or refinance any existing indebtedness for borrowed money on terms materially no less favorable than those of the Company’s existing arrangements, or (iv) guarantees by the Company of indebtedness for borrowed money of any Company Subsidiary, which indebtedness is incurred in compliance with this Section 6.3(m); (n) accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any accounts receivable owed to the Company or any Company Subsidiary, with or without recourse, including any rights or claims associated therewith, other than in the Ordinary Course of Business; (o) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP or as required by a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization) or (ii) as required by applicable Law; (p) write up, write down or write off the book value of any of its assets, other than as may be required by GAAP in the Ordinary Course of Business; (q) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates or Company Personnel, other than, solely with respect to Company Personnel, (i) as permitted by Section 6.3(c) and (ii) in the Ordinary Course of Business; (r) except in the Ordinary Course of Business, sell, transfer, license, lease, encumber or dispose of any rights to Company Intellectual Property Assets or Company Software, or enter into any commitment or transaction with respect to any Company Intellectual Property Assets outside the Ordinary Course of Business; (s) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization; (t) commence, waive, release, assign, settle or compromise any pending or threatened Action which is (i) material to the business of the Company and its Subsidiaries, taken as a whole, (ii) otherwise involves the payment by the Company or any of its Subsidiaries of an amount in excess of $2,000,000 individually or $5,000,000 in the aggregate (excluding any amounts that may be paid under existing Insurance Policies) or (iii) imposes material non-economic obligations upon the Company or any of its Subsidiaries; (u) other than in the Ordinary Course of Business, amend, modify or terminate any insurance policy in a manner that is adverse to the Company and its Subsidiaries or which reduces coverage under any such insurance policy; provided that any amendment, modification or termination to the Company’s and the Company Subsidiaries’ existing cyber-security insurance policy shall require the prior written consent of the Purchaser; (v) intentionally take or fail to take any action knowingly in breach of this Agreement for the purpose of materially delaying or preventing the consummation of the transactions contemplated hereby (other than as required by Law); or (w) take, authorize, or commit, resolve, offer or agree to take any of the foregoing actions
Appears in 1 contract
Samples: Stock Purchase Agreement (Total System Services Inc)
Conduct of Business Pending the Closing Date. During the period from the date of this Agreement and continuing until the earlier (a) Seller agrees that, except as (i) set forth on Section 5.3 of the termination of this Agreement in accordance with Section 10.1 or the ClosingSeller Disclosure Letter, except (wii) as may be required or not otherwise prohibited by this Agreement, or (iii) required by Law, by a Governmental Entity Entity, or Lawby any Contract to which the Company or any of the Company Subsidiaries is bound and which is set forth on the Seller Disclosure Letter, (x) or to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, during the period commencing on the date hereof and ending at the earlier of (x) the Closing Date and (y) as otherwise expressly provided or expressly permitted in termination of this Agreement pursuant to Section 8.1, it shall cause the Company and its Subsidiary to conduct their respective operations only in the ordinary course of business consistent with past practice and to use their commercially reasonable efforts to preserve intact their respective business organizations, keep available the services of their officers and employees and maintain satisfactory relationships with suppliers, clients and others having business relationships with them, including through ordinary course renewals, negotiations with and amendments to such relationships.
(b) In furtherance and not in limitation of Section 5.3(a) hereof, Seller agrees that during the period commencing on the date hereof and ending on the earlier of (x) the Closing Date and (zy) termination of this Agreement pursuant to Section 8.1, except as provided in set forth on Section 6.3 5.3(b) of the Company Seller Disclosure Letter, the Company shall (not, and the Sellers shall cause the Company to) conduct its and the Company Subsidiaries’ businesses in all material respects in the Ordinary Course of Business, and in accordance, in all material respects, with all applicable Laws and use reasonable best efforts to preserve the material assets and properties of the Company and its Subsidiaries in good repair and condition, keep available the services of its present officers, and, in the Ordinary Course of Business, preserve the current material business relationships of the Company and its Subsidiaries. Without limiting the generality of the foregoing, except (1) as may be required by a Governmental Entity or Law, (2) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (3) as otherwise specifically provided in this Agreement and (4) as provided in Section 6.3 of the Company Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company agrees Subsidiary not to, and the Sellers agree not to permit the Company to, take effect any of the following actions without the prior written consent of Purchaser (and to cause the Company’s Subsidiaries such consent not to take be unreasonably withheld, conditioned or delayed); provided, that the consent of Purchaser shall be deemed to have been given if Purchaser does not object within five (5) Business Days from the date on which request for such actionsconsent is provided by the Company to Purchaser):
(ai) amend make any change in or amendment to its certificate of incorporation or its by-laws, articles certificate of organization, formation or limited liability company agreementagreement (or comparable governing documents), partnership agreements or equivalent organizational documentsas applicable, other than to the extent required by applicable Law;
(bii) issue or sell, or authorize to issue or sell, any units or shares of its membership interests or capital stock, as applicable, or any other ownership interests, as applicable, 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 or sale of, any units or shares of its membership interests, capital stock, or any other ownership interests, as applicable;
(iii) split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares or units of its capital stock, membership interests or its other securities, as applicable;
(iv) other than as may be required by Law, sell, transfer, lease, license, encumber or otherwise dispose of, or agree to sell, transfer, lease, license, encumber or otherwise dispose of (i) authorize for issuanceany property or assets (other than the disposition of inventory or equipment in the ordinary course of business consistent with past practice), issue, deliver, sell, pledge, transfer, grant, dispose of (ii) mortgage or encumber or otherwise subject to any shares of capital stock Lien any material properties or material assets (other equity than by Permitted Liens) or voting interests of (iii) cancel or waive any material debts owed to or claims or rights held by the Company or any Subsidiary (except in the ordinary course of its Subsidiaries business consistent with past practice);
(v) other than in the ordinary course of business consistent with past practice, amend, modify, terminate or waive rights with respect to any securities convertible intoMaterial Contract (other than the Supply Agreement and/or the Services Agreement) or enter into a Contract which, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked had it been entered into prior to the value of the Company Shares or the value of the Company or any of its Subsidiaries or any part thereofdate hereof, would have been a Material Contract; provided, however, that none the Company and its Subsidiary may extend the term of any Material Contract that has expired in accordance with its terms prior to the foregoing shall prohibit date hereof or is scheduled to expire in accordance with its terms within six (6) months after the date hereof;
(vi) (A) incur any Indebtedness, other than letters of credit incurred in the issuance ordinary course of business consistent with past practice or borrowings under existing credit facilities set forth on Section 5.3(b)(vi) of the Seller Disclosure Letter, or (B) make any loans or advances to any other Person, other than loans and advances to employees consistent with past practice;
(vii) grant or agree to grant to any director, officer or employee of the Company Shares upon or its Subsidiary any increase in wages or bonus, severance, profit sharing, retirement, insurance or other compensation or benefits, or establish any new compensation or employee benefit plans or arrangements, or amend or agree to amend any existing Employee Benefit Plans, except (A) as may be required under applicable Law, (B) pursuant to the conversion Employee Benefit Plans of the Company or exercise its Subsidiary in effect on the date hereof, (C) in the ordinary course, (D) payment of convertible securities outstanding any accrued or earned but unpaid compensation or (E) as required pursuant to employment, retention or change-of-control Contracts existing as of the date hereof;
(viii) cancel or forgive any Indebtedness owed to the Company or its Subsidiary, other than Indebtedness of this Agreement the Company to its Subsidiary or Indebtedness for borrowed money of its Subsidiary to the Company;
(ix) except as may be required by Law, any Governmental Entity or under GAAP, (A) change its fiscal year, (B) transactions involving solely securities of a wholly owned Subsidiary of change any Tax elections, amend any Returns, change the Company among the Company and its wholly-owned Subsidiaries past practice or among the Company’s wholly-owned Subsidiaries, (ii) effect reporting position in filing any stock split, stock combination, stock reclassification, reverse stock split, recapitalization or other similar transactionReturns, or issue settle any Tax controversies or authorize audits (except in the issuance ordinary course of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for any such transaction by a wholly-owned Subsidiary of the Company which remains a wholly-owned Subsidiary of the Company after consummation of such transaction or (iii) enter into any amendment of any term of any of its outstanding securities.
(c) (i) except to the extent required under existing plans or arrangements set forth in Section 4.9(a) of the Company Disclosure Letter, business consistent with past practice or as otherwise required by applicable Law, increase any compensation or benefit to, or, except in connection with the hiring of new Company Personnel in the Ordinary Course of Business, enter into or amend any employment or severance agreement with, any officer, director or other Company Personnel, (ii) grant any bonuses to any Company Personnel that would not otherwise be paid at or prior to the Closing, (iii) enter into, adopt, modify or amend any Company Pension Plan, Company Benefit Plan or Company Other Plan (including any stock option, stock benefit or stock purchase plan) or, except as contemplated by this Agreement, accelerate the vesting of any compensation (including equity based awards) for the benefit of any Company Personnel or grant or amend any award under any Company Pension Plan, Company Benefit Plan or Company Other Plan (including the grant of any equity or equity based or related compensation), (iv) provide any funding for any rabbi trust or similar arrangement or take any other action to fund or secure the payment of any compensation or benefit, (v) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than as required under a Company Contract with a Key Employee set forth in Section 4.9(a) of the Company Disclosure Letter or, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the Ordinary Course of Business), or (viC) terminate make any Key Employee other than for cause (material change in its methods, principles and practices of accounting, including misconduct or breach of company policy)tax accounting policies and procedures;
(dx) (i) declare, set aside form any Subsidiary or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company to another Subsidiary of the Company or to the Company), or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any such stock or other securities;
(e) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Lien (except Permitted Liens), other than, in the case of both (i) and (ii), in the Ordinary Course of Business;
(f) enter into any Contract that is a Sponsorship Agreement or any Contract with a Card Association, provider of front end or back end payment processing services, or with a payment gateway, or modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change inacquire by merging or consolidating with, or waive, release by purchasing a substantial equity interest in or assign, in a manner which is adverse to the Company in any material respect, any rights under any Primary Business Contract;
(g) (i) modify, amend or change any of the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines for customers in a manner which is less restrictive than those in place as of the date hereof or (ii) other than in compliance with the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines (including the exceptions criteria and process contemplated thereby) as implemented in the Ordinary Course of Business, authorize any new customer to process transactions through the Company’s or the Company Subsidiaries’ processing system or otherwise enter into a customer agreement or relationship with any new customer;
(h) (i) enter into any contract that, if entered into as of or prior to the date hereof, would constitute a Company Contract pursuant to clauses (i), (ii), (ix) or (xii) of Section 4.14(a) or otherwise enter into any lease with respect to any material assets that is not otherwise terminable without penalty on ninety (90) days’ notice or less or (ii) except in the Ordinary Course of Business, modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)) or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed by clause (k) below) in a manner that is adverse to the Company in any material respect, provided that in no event shall the Company enter into any contract or group of related contracts which require or involve the payment by the Company or any of the Company Subsidiaries on an annual basis of more than $1,000,000 not contemplated by the budget provided by the Company to the Purchaser (excluding any one-time signing bonuses payable in connection with new partner agreements in the Ordinary Course of Business), or (ii) waive, release or assign, in any respect in a manner which is adverse to the Company in any material respect, any rights under any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f));
(i) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(j) make or agree to make any loans, advances or capital contributions to, or other investments in, any other Person, except in the Ordinary Course of Business;
(k) make any capital expenditures except in accordance with the budget provided by the Company to the Purchaser, other than capital expenditures not otherwise contemplated by such budget that do not exceed $500,000 individually or $2,000,000 in the aggregate;
(l) (i) merge with, enter into a consolidation with or otherwise acquire an interest of 50% or more of the outstanding equity interests in any Person or acquire a substantial portion of the assets of, or by any other manner, any business of or any Person (or any division thereof or line of business thereof), (ii) otherwise acquire or agree to acquire or in-license any assets or rights (including, through leases, subleases and licenses other than the acquisition or in-license of real property) any assets, except, assets used in the case operations of this clause (ii), in the Ordinary Course of Business, or (iii) enter into any new line of business;
(m) create, incur or assume any indebtedness for borrowed money, or issue any debt securities or any right to acquire debt securities, assume, guarantee, or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person, except (i) for indebtedness incurred in the Ordinary Course of Business under the Company’s existing borrowing arrangements which at any time shall not exceed $10,000,000, (ii) for any indebtedness solely involving the Company and/or direct or indirect wholly owned Subsidiaries of the Company, (iii) indebtedness for borrowed money incurred to replace, renew, extend, or refinance any existing indebtedness for borrowed money on terms materially no less favorable than those of the Company’s existing arrangements, or (iv) guarantees by the Company of indebtedness for borrowed money of any Company Subsidiary, which indebtedness is incurred in compliance with this Section 6.3(m);
(n) accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any accounts receivable owed to the Company or any Company Subsidiary, with or without recourse, including any rights or claims associated therewith, other than in the Ordinary Course of Business;
(o) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP or as required by a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization) or (ii) as required by applicable Law;
(p) write up, write down or write off the book value of any of its assets, other than as may be required by GAAP in the Ordinary Course of Business;
(q) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates or Company Personnel, other than, solely with respect to Company Personnel, (i) as permitted by Section 6.3(c) and (ii) in the Ordinary Course of Business;
(r) except in the Ordinary Course of Business, sell, transfer, license, lease, encumber or dispose of any rights to Company Intellectual Property Assets or Company Software, or enter into any commitment or transaction with respect to any Company Intellectual Property Assets outside the Ordinary Course of Business;
(s) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization;
(t) commence, waive, release, assign, settle or compromise any pending or threatened Action which is (i) material to the business of the Company and its SubsidiariesSubsidiary in the ordinary course consistent with past practice);
(xi) effectuate a “plant closing” or “mass layoff” (as those terms are defined under WARN) affecting in whole or in part any site of employment, taken as a wholefacility, (ii) otherwise involves the payment by operating unit or employees of the Company or any of its Subsidiaries of an amount Subsidiary;
(xii) make capital expenditures in excess of $2,000,000 individually or $5,000,000 100,000 in the aggregate (excluding any amounts that may be paid under existing Insurance Policies) or (iii) imposes material non-economic obligations upon the Company or any of its Subsidiaries;
(u) other than in the Ordinary Course of Business, amend, modify or terminate any insurance policy in a manner that is adverse to the Company and its Subsidiaries or which reduces coverage under any such insurance policy; provided that any amendment, modification or termination to the Company’s and the Company Subsidiaries’ existing cyber-security insurance policy shall require the prior written consent of the Purchaser;
(v) intentionally take or fail to take any action knowingly in breach of this Agreement for the purpose of materially delaying or preventing the consummation of the transactions contemplated hereby (other than as required by Law)aggregate; or
(wxiii) take, authorizeauthorize any of, or commit, resolve, offer commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 5.3.
(c) Nothing contained in this Agreement shall give Purchaser, directly or indirectly, any right to control or direct the operations of the foregoing actionsCompany and its Subsidiary prior to the Closing. Prior to the Closing, Seller shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Company and its Subsidiary and notwithstanding anything contained herein to the contrary, no consent of Purchaser shall be required with respect to any matter set forth in Section 5.3 or elsewhere in this Agreement to the extent that the requirement of such consent or not taking any action or refraining from taking any action that would otherwise require consent could violate any applicable Law.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Company and its Subsidiary shall be permitted to periodically settle intercompany balances (including through cash dividends and capital contributions and all such intercompany balances shall be settled at the Closing in accordance with their terms). The Company and its Subsidiary are allowed to dividend all Cash and Cash Equivalents of the Company and its Subsidiary to Seller immediately prior to Closing, provided that any such dividend of Cash and Cash Equivalents is properly reflected in the Closing Cash calculation set forth on the Estimated Closing Statement and the Closing Statement.
Appears in 1 contract
Samples: Unit Purchase Agreement (Universal Truckload Services, Inc.)
Conduct of Business Pending the Closing Date. During The Company agrees that, except as set forth on Schedule 5.3 of the Company Disclosure Letter or unless expressly permitted or required by this Agreement or otherwise consented to in writing by Purchaser (which consent (i) shall not be unreasonably withheld, conditioned or delayed and (ii) in the case of Section 5.3(b)(xv), shall only be required of Xx. Xxxxxx X. Doherty which consent, in the case of storage and throughput Contracts, shall be deemed given if not received or affirmatively refused within twenty-four (24) hours after receipt by Xx. Xxxxxxx of the request therefor), during the period from commencing on the date of this Agreement hereof and continuing until ending at the earlier of (x) the Closing and (y) any termination of this Agreement pursuant to Section 6.3:
(a) it shall cause each of its Subsidiaries to conduct such Subsidiary's operations only in accordance with Section 10.1 or the Closingordinary course of business of such Subsidiary, except (w) as may be required by a Governmental Entity or Law, (x) use such Subsidiary's commercially reasonable efforts to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (y) as otherwise expressly provided or expressly permitted in this Agreement and (z) as provided in Section 6.3 of the Company Disclosure Letter, the Company shall (and the Sellers shall cause the Company to) conduct its and the Company Subsidiaries’ businesses in all material respects in the Ordinary Course of Business, and in accordancepreserve intact, in all material respects, with all applicable Laws and use reasonable best efforts to preserve the material assets and properties of the Company and its Subsidiaries in good repair and conditionsuch Subsidiary's business organization, keep available available, in all material respects, the services of its present officers, andsuch Subsidiary's officers and employees and maintain, in the Ordinary Course of Businessall material respects, preserve the current material satisfactory relationships with licensors, suppliers, distributors, clients, customers and others having significant business relationships of the Company and its Subsidiaries. Without limiting the generality of the foregoing, except (1) as may be required by a Governmental Entity or Law, (2) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (3) as otherwise specifically provided in this Agreement and (4) as provided in Section 6.3 of the Company Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company agrees not to, and the Sellers agree not to permit the Company to, take any of the following actions (and to cause the Company’s Subsidiaries not to take with such actions):
(a) amend its certificate of incorporation or its by-laws, articles of organization, limited liability company agreement, partnership agreements or equivalent organizational documents;Subsidiary; and
(b) it shall cause each of its Subsidiaries not to:
(i) authorize for issuance, issue, deliver, take any action to make any change in or amendment to such Subsidiary's articles of incorporation (or comparable governing documents);
(ii) issue or sell, pledgeor authorize to issue or sell, transferany of such Subsidiary's share capital or any other securities, grantor 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 or sale of, any of such Subsidiary's share capital or any other securities, or make any other changes in such Subsidiary's capital structure;
(iii) sell, pledge or dispose of or encumber agree to sell, pledge or dispose of any shares or other equity interest owned by such Subsidiary's in any other Person;
(iv) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of such Subsidiary's share capital stock or such Subsidiary's other equity or voting interests securities (other than (x) distributions to any other Subsidiary of the Company or any of its Subsidiaries or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked (y) distributions to the value of Company to the extent necessary to make the distributions required by the Company Shares or the value of the Company or any of its Subsidiaries or any part thereof, provided, however, that none of the foregoing shall prohibit Articles);
(A) the issuance of Company Shares upon the conversion or exercise of convertible securities outstanding as of the date of this Agreement or (B) transactions involving solely securities of a wholly owned Subsidiary of the Company among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, recapitalization or other similar transaction, 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, except for any such transaction by a wholly-owned Subsidiary of the Company which remains a wholly-owned Subsidiary of the Company after consummation of such transaction or (iiiv) enter into any amendment contract or commitment with respect to capital expenditures with a value in excess of, or requiring expenditures in excess of, one million dollars ($1,000,000), individually, or enter into contracts or commitments with respect to capital expenditures with a value in excess of, or requiring expenditures in excess of, two million dollars ($2,000,000), in the aggregate, other than inventory purchased in the ordinary course of business;
(vi) acquire, by amalgamating, merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person or otherwise acquire any assets of any term Person (other than the purchase of any assets in the ordinary course of its outstanding securities.business);
(c) (ivii) except to the extent required by applicable Law or under existing plans employee or director benefit plans, Contracts, arrangements set forth or collective bargaining Contracts in Section 4.9(a) effect on the date of this Agreement, increase the Company Disclosure Lettercompensation or fringe benefits of any of such Subsidiary's directors, officers or employees, or as otherwise grant any bonus or severance or termination pay not currently required by applicable Lawto be paid under existing severance plans, increase any compensation or benefit to, or, except in connection with the hiring of new Company Personnel in the Ordinary Course of Business, enter into or amend any employment employment, consulting or severance agreement withContract or arrangement with any of such Subsidiary's present or former directors, any officer, director officers or other Company Personnelemployees, (ii) grant any bonuses to any Company Personnel that would not otherwise be paid at or prior to the Closingestablish, (iii) adopt, enter into, adoptamend or terminate any collective bargaining, modify or amend any Company Pension Planbonus, Company Benefit Plan or Company Other Plan (including any profit sharing, thrift, compensation, stock option, stock benefit restricted stock, pension, retirement, deferred compensation, employment, termination, severance or stock purchase other plan) or, except as contemplated by this AgreementContract, accelerate the vesting of any compensation (including equity based awards) trust, fund, policy or arrangement for the benefit of any Company Personnel such Subsidiary's directors, officers or grant or amend any award under any Company Pension Planemployees; provided, Company Benefit Plan or Company Other Plan (including that, without the grant prior consent of any equity or equity based or related compensation)Purchaser, (ivA) provide any funding for any rabbi trust or similar arrangement or take any other action the Operating Subsidiaries and their respective Subsidiaries may increase the aggregate annualized compensation paid to fund or secure all of the payment employees of any compensation or benefit, (v) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein the Operating Subsidiaries and their respective Subsidiaries (other than as required under a Company employees who have an employment Contract with a Key Employee set forth in Section 4.9(aany Operating Subsidiary or any of their respective Subsidiaries or employees who are covered by any collective bargaining Contract) by an amount not to exceed four percent (4%) of the Company Disclosure Letter or, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the Ordinary Course of Business), or (vi) terminate any Key Employee other than for cause (including misconduct or breach of company policy);
(d) (i) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company to another Subsidiary of the Company or to the Company), or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any such stock or other securities;
(e) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Lien (except Permitted Liens), other than, in the case of both (i) and (ii), in the Ordinary Course of Business;
(f) enter into any Contract that is a Sponsorship Agreement or any Contract with a Card Association, provider of front end or back end payment processing services, or with a payment gateway, or modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, or waive, release or assign, in a manner which is adverse to the Company in any material respect, any rights under any Primary Business Contract;
(g) (i) modify, amend or change any of the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines for customers in a manner which is less restrictive than those in place aggregate annualized compensation as of the date hereof or payable to such employees, and (iiB) other than in compliance with the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines (including the exceptions criteria and process contemplated thereby) as implemented in the Ordinary Course of Businesssuch Subsidiaries may, authorize any new customer to process transactions through the Company’s or the Company Subsidiaries’ processing system or otherwise enter into a customer agreement or relationship with any new customer;
(h) (i) enter into any contract that, if entered into as of or prior to the date hereof, would constitute a Company Contract pursuant to clauses (i), (ii), (ix) or (xii) of Section 4.14(a) or otherwise enter into any lease with respect to any material assets that is employee of any Operating Subsidiary or any of their respective Subsidiaries having an employment Contract, (1) set the bonus target for such employee at an amount not otherwise terminable without penalty on ninety in excess of seventy-five percent (9075%) days’ notice or less or of such employee's base pay, (ii2) except set the bonus target EBITDA for the Operating Subsidiaries and their respective Subsidiaries for fiscal year 2002 for the purpose of determining the incentive thresholds applicable to such Contract at an amount not lower than forty-two million seven hundred thousand dollars ($42,700,000) and (3) set the annual compensation increase for such employee at an amount not in excess of the Ordinary Course of Businessminimum required by such employee's employment Contract;
(viii) transfer, modifylease, amendlicense, cancelguarantee, terminatesell, renewmortgage, extend or request any change inpledge, or agree dispose of, subject to any change inLien, any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)) or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed Liens arising by clause (k) below) in a manner that is adverse to the Company in any material respect, provided that in no event shall the Company enter into any contract or group operation of related contracts which require or involve the payment by the Company or any of the Company Subsidiaries on an annual basis of more than $1,000,000 not contemplated by the budget provided by the Company to the Purchaser (excluding any one-time signing bonuses payable in connection with new partner agreements Law in the Ordinary Course ordinary course of Business)business including, without limitation, mechanics' or (ii) waivematerialmens' Liens and maritime Liens, release or assignthat are not, in any respect in a manner which is adverse to the Company in any material respect, any rights under any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f));
(i) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(j) make or agree to make any loans, advances or capital contributions to, or other investments in, any other Person, except in the Ordinary Course of Business;
(k) make any capital expenditures except in accordance with the budget provided by the Company to the Purchaser, other than capital expenditures not otherwise contemplated by such budget that do not exceed $500,000 individually or $2,000,000 in the aggregate;
(l, material) (i) merge with, enter into a consolidation with or otherwise acquire an interest of 50% or more of the outstanding equity interests in encumber any Person or acquire a substantial portion of the assets or business of any Person (or any division or line of business thereof), (ii) otherwise acquire (including, through leases, subleases and licenses of real property) any material assets, except, in the case of this clause (ii), in the Ordinary Course of Business, or (iii) enter into any new line of business;
(m) create, incur or assume modify any indebtedness for borrowed moneyor other material liability, or issue any debt securities or any right to acquire debt securities, assume, guarantee, guarantee or endorse or otherwise as an accommodation become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness obligations of another Person, enter into any agreement to maintain Person (other than any financial statement condition of another Person, except (i) for indebtedness incurred in the Ordinary Course of Business under the Company’s existing borrowing arrangements which at any time shall not exceed $10,000,000, (ii) for any indebtedness solely involving the Company and/or direct or indirect wholly owned Subsidiaries other Subsidiary of the Company, (iii) indebtedness for borrowed money incurred to replace, renew, extend, or refinance make any existing indebtedness for borrowed money on terms materially no less favorable than those loan or other extension of the Company’s existing arrangements, or (iv) guarantees by the Company of indebtedness for borrowed money of any Company Subsidiary, which indebtedness is incurred in compliance with this Section 6.3(m)credit;
(nix) accelerate, discount, factor, reduce, sell (for less than its face value make or otherwise), transfer, assign or otherwise dispose of, in full or in part, rescind any accounts receivable owed to the Company or any Company Subsidiary, with or without recourse, including any rights or claims associated therewith, other than in the Ordinary Course of Businessmaterial Tax election;
(ox) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP or as required by a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization) or (ii) as required by applicable LawLaw or GAAP, make any material change in its method of accounting;
(pxi) write up, write down or write off the book value of any of its assets, other than as may be required by GAAP in the Ordinary Course of Business;
(q) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates or Company Personnel, other than, solely with respect to Company Personnel, (i) as permitted by Section 6.3(c) and (ii) in the Ordinary Course of Business;
(r) except in the Ordinary Course of Business, sell, transfer, license, lease, encumber or dispose of any rights to Company Intellectual Property Assets or Company Software, adopt or enter into any commitment or transaction with respect to any Company Intellectual Property Assets outside the Ordinary Course of Business;
(s) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or any other reorganization;
(txii) commence(x) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, waive, release, assign, settle other than indebtedness owing to or compromise guarantees of indebtedness owing to any pending or threatened Action which is (i) material to the business other Subsidiary of the Company and its SubsidiariesCompany, taken as a wholeor (y) make any loans or advances to any other Person, (ii) otherwise involves other than to any other Subsidiary of the payment by the Company or any of its Subsidiaries of an amount in excess of $2,000,000 individually or $5,000,000 Company, except, in the aggregate case of clause (excluding any amounts that may be paid x), for borrowings under existing Insurance Policies) or (iii) imposes material non-economic obligations upon credit facilities described in the Company or any Completed Commission Filings in the ordinary course of its Subsidiariesbusiness for working capital purposes;
(uxiii) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits;
(xiv) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction (x) of any such claims, liabilities or obligations in the ordinary course of business or (y) of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) contained in the Completed Commission Filings;
(xv) enter into, materially modify, amend or terminate any Material Contract (other than any storage and throughput Contract that both (x) has a duration (immediately before terminating such Material Contract or immediately after entering into, modifying or, as the case may be, amending such Material Contract) of less than ninety (90) days and (y) involves even payment obligations throughout the term of such Contract);
(xvi) other than routine employee terminations for cause or in the Ordinary Course ordinary course of Businessbusiness or as disclosed in the Completed Commission Filings, amendplan, modify announce, implement or terminate effect any insurance policy reduction in a manner that is adverse to force, lay-off, early retirement program, severance program or other program or effort concerning the Company and its Subsidiaries or which reduces coverage under termination of employment of any of such insurance policy; provided that any amendment, modification or termination to the Company’s and the Company Subsidiaries’ existing cyber-security insurance policy shall require the prior written consent of the Purchaser;
(v) intentionally take or fail to take any action knowingly in breach of this Agreement for the purpose of materially delaying or preventing the consummation of the transactions contemplated hereby (other than as required by Law)Subsidiary's employees; or
(wxvii) takeenter into any Tax agreement or similar agreement with the Island Territory of Sint Eustatius or the Land Territory of the Netherlands Antilles; or
(xviii) agree, authorizein writing or otherwise, or commit, resolve, offer or agree to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business Pending the Closing Date. During (a) Each of GP and the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 10.1 or the ClosingPartnership agrees that, except (wi) as set forth in Section 6.3(a) of the Partnership Disclosure Letter, (ii) as may be required or not otherwise prohibited by this Agreement, (iii) as required by Law, a Governmental Entity Entity, or Lawby any Contract to which the Partnership or any Partnership Subsidiary is bound and which has been made available to Parent or (iv) with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), during the period commencing on the date hereof and ending at the earlier of (x) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, Closing Date and (y) as otherwise expressly provided or expressly permitted in termination of this Agreement and (z) as provided in pursuant to Section 6.3 9.1, each of the Company Disclosure Letter, the Company shall (GP and the Sellers Partnership shall, and shall cause the Company Partnership Subsidiaries to) , conduct its and the Company Subsidiaries’ businesses in all material respects their respective operations only in the Ordinary Course ordinary course of Business, business consistent with past practice and in accordance, in all material respects, with all applicable Laws and to use their commercially reasonable best efforts to preserve the material assets and properties of the Company and its Subsidiaries in good repair and conditionintact their respective business organizations, keep available the services of its present officerstheir executive officers and maintain in all material respects satisfactory relationships with suppliers, and, in the Ordinary Course of Business, preserve the current material clients and others having business relationships with them.
(b) In furtherance and not in limitation of Section 6.3(a) hereof, the Company and its Subsidiaries. Without limiting the generality of the foregoing, except (1) as may be required by a Governmental Entity or Law, (2) to the extent the Purchaser shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (3) as otherwise specifically provided in this Agreement and (4) as provided in Section 6.3 of the Company Disclosure Letter, Partnership agrees that during the period from commencing on the date of this Agreement hereof and continuing until ending on the earlier of (x) the Closing Date and (y) termination of this Agreement pursuant to its terms or Section 9.1, except as set forth in Section 6.3(b) of the ClosingPartnership Disclosure Letter, the Company agrees Partnership shall not, and shall cause the Partnership Subsidiaries not to, and the Sellers agree not to permit the Company to, take effect any of the following actions without the prior written consent of Parent (and to cause the Company’s Subsidiaries such consent not to take such actionsbe unreasonably withheld, conditioned or delayed):
(ai) amend make any change in or amendment to its certificate of incorporation or its by-laws, articles of organization, organization or limited liability company agreementagreement (or comparable governing documents), partnership agreements as applicable, in a manner that would reasonably be expected to materially delay or equivalent organizational documentsimpede the Partnership’s ability to consummate the transactions contemplated hereby;
(bii) (i) authorize for issuance, issue, deliver, issue or sell, pledgeor authorize to issue or sell, transfer, grant, dispose of any units or encumber any shares of its membership interests, partnership interests or capital stock or other equity or voting interests of the Company stock, as applicable, or any of its Subsidiaries or any securities convertible intoother ownership interests, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of the Company Shares or the value of the Company or any of its Subsidiaries or any part thereof, provided, however, that none of the foregoing shall prohibit (A) the issuance of Company Shares upon the conversion or exercise of convertible securities outstanding as of the date of this Agreement or (B) transactions involving solely securities of a wholly owned Subsidiary of the Company among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, recapitalization or other similar transactionapplicable, 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 or sale of, any units or shares of its membership interests, partnership interests, capital stock, or any other securities in respect ofownership interests, in lieu of as applicable;
(iii) split, combine, redeem or in substitution for reclassify, or purchase or otherwise acquire, any shares or units of its capital stock, except for any such transaction by a wholly-owned Subsidiary of the Company which remains a wholly-owned Subsidiary of the Company after consummation of such transaction membership interests, partnership interests or (iii) enter into any amendment of any term of any of its outstanding other securities., as applicable;
(c) (i) except to the extent required under existing plans or arrangements set forth in Section 4.9(a) of the Company Disclosure Letter, or as otherwise required by applicable Law, increase any compensation or benefit to, or, except in connection with the hiring of new Company Personnel in the Ordinary Course of Business, enter into or amend any employment or severance agreement with, any officer, director or other Company Personnel, (ii) grant any bonuses to any Company Personnel that would not otherwise be paid at or prior to the Closing, (iii) enter into, adopt, modify or amend any Company Pension Plan, Company Benefit Plan or Company Other Plan (including any stock option, stock benefit or stock purchase plan) or, except as contemplated by this Agreement, accelerate the vesting of any compensation (including equity based awards) for the benefit of any Company Personnel or grant or amend any award under any Company Pension Plan, Company Benefit Plan or Company Other Plan (including the grant of any equity or equity based or related compensation), (iv) provide any funding for any rabbi trust or similar arrangement or take any other action to fund or secure the payment of any compensation or benefitsell, (v) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than as required under a Company Contract with a Key Employee set forth in Section 4.9(a) of the Company Disclosure Letter or, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the Ordinary Course of Business), or (vi) terminate any Key Employee other than for cause (including misconduct or breach of company policy);
(d) (i) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company to another Subsidiary of the Company or to the Company), or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any such stock or other securities;
(e) (i) transfer, sell, lease, sublease, license, sublicense license or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Lien (except Permitted Liens), other than, for a purchase price in the case aggregate in excess of both $250,000, except (iA) and (ii), in the Ordinary Course ordinary course of Business;
business consistent with past practice, (fB) enter into any Contract that is a Sponsorship Agreement or any Contract with a Card Association, provider of front end or back end payment processing services, or with a payment gateway, or modify, amend, cancel, terminate, renew, extend or request any change in, or agree pursuant to any change in, or waive, release or assign, Contracts in a manner which is adverse to the Company in any material respect, any rights under any Primary Business Contract;
(g) (i) modify, amend or change any of the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines for customers in a manner which is less restrictive than those in place as of force on the date hereof or (ii) other than in compliance with the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines (including the exceptions criteria and process contemplated thereby) as implemented in the Ordinary Course of Business, authorize any new customer made available to process transactions through the Company’s or the Company Subsidiaries’ processing system or otherwise enter into a customer agreement or relationship with any new customer;
(h) (i) enter into any contract that, if entered into as of Parent on or prior to the date hereof, would constitute a Company Contract pursuant to clauses (i), (ii), (ixC) dispositions of obsolete or immaterial assets or (xiiD) of Section 4.14(atransfers among Partnership and the Partnership Subsidiaries;
(v) or otherwise enter into any lease with respect to any material assets that is not otherwise terminable without penalty on ninety (90) days’ notice or less or (ii) except other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)) or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed by clause (k) below) in a manner that is adverse to the Company amend in any material respect, provided that in no event shall the Company 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; provided, however, that the Partnership and the Partnership Subsidiaries may renegotiate the terms of, or otherwise extend, any contract Material Contract that has expired in accordance with its terms prior to the date hereof or group is scheduled to expire in accordance with its terms within six (6) months after the date hereof;
(vi) (A) incur any Indebtedness, other than short-term Indebtedness, intercompany Indebtedness or letters of related contracts which require credit incurred in the ordinary course of business or involve the payment by the Company or any borrowings under existing credit facilities set forth in Section 6.3(b)(vi) of the Company Subsidiaries on an annual basis of more than $1,000,000 not contemplated by the budget provided by the Company to the Purchaser (excluding any one-time signing bonuses payable in connection with new partner agreements in the Ordinary Course of Business)Partnership Disclosure Letter, or (ii) waive, release or assign, in any respect in a manner which is adverse to the Company in any material respect, any rights under any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f));
(i) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(jB) make any loans or agree advances to make any loans, advances or capital contributions to, or other investments in, any other Person, except in the Ordinary Course of Businessother than loans and advances to Partnership Subsidiaries or employees consistent with past practice;
(kvii) make grant or agree to grant to any capital expenditures officer of the Partnership or the Partnership Subsidiaries any material increase in wages or bonus, severance, profit sharing, retirement, insurance or other compensation or benefits, or establish any new compensation or employee benefit plans or arrangements, or amend or agree to amend in any material respect any existing Employee Benefit Plans, except in accordance with the budget provided by the Company (A) as may be required under applicable Law, (B) pursuant to the PurchaserEmployee Benefit Plans of the Partnership or the Partnership Subsidiaries in effect on the date hereof, other than capital expenditures not otherwise contemplated by such budget that do not exceed $500,000 individually or $2,000,000 (C) in the aggregateordinary course of business, (D) payment of any accrued or earned but unpaid compensation or (E) pursuant to employment, retention, change-of-control or similar type Contracts existing as of the date hereof and set forth in Section 6.3(b)(vii) of the Partnership Disclosure Letter;
(lviii) (i) merge with, enter into a consolidation with cancel or otherwise acquire an interest of 50% forgive any Indebtedness owed to the Partnership or more the Partnership Subsidiaries other than Indebtedness of the outstanding equity interests in Partnership to any Person Partnership Subsidiary or acquire a substantial portion of the assets or business of any Person (or any division or line of business thereof), (ii) otherwise acquire (including, through leases, subleases and licenses of real property) any assets, except, in the case of this clause (ii), in the Ordinary Course of Business, or (iii) enter into any new line of business;
(m) create, incur or assume any indebtedness for borrowed money, or issue any debt securities or any right to acquire debt securities, assume, guarantee, or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person, except (i) for indebtedness incurred in the Ordinary Course of Business under the Company’s existing borrowing arrangements which at any time shall not exceed $10,000,000, (ii) for any indebtedness solely involving the Company and/or direct or indirect wholly owned Subsidiaries of the Company, (iii) indebtedness for borrowed money incurred to replace, renew, extend, or refinance any existing indebtedness for borrowed money on terms materially no less favorable than those of the Company’s existing arrangements, or (iv) guarantees by the Company of indebtedness Indebtedness for borrowed money of any Company Partnership Subsidiary to the Partnership or any other Partnership Subsidiary, which indebtedness is incurred in compliance with this Section 6.3(m);
(nix) accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any accounts receivable owed to the Company or any Company Subsidiary, with or without recourse, including any rights or claims associated therewith, other than in the Ordinary Course of Business;
(o) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP or as required by a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization) or (ii) as required by applicable Law;
(p) write up, write down or write off the book value of any of its assets, other than as may be required by GAAP any Governmental Entity or under GAAP, make any material change in the Ordinary Course its methods, principles and practices of Businessaccounting, including tax accounting policies and procedures;
(qx) enter intoamend the terms of any post-closing “earn-outs” or similar deferred purchase price payments relating to any prior acquisition by GP, amend Partnership or modify any agreement Partnership Subsidiary; provided, that, for the avoidance of doubt, nothing herein shall prohibit GP, the Partnership or arrangement with Persons that are Affiliates or Company Personnel, other than, solely with respect to Company Personnel, any Partnership Subsidiary from (i) as permitted by Section 6.3(c) paying any “earn-out” or similar deferred purchase price payments as, when and to the extent due and (ii) settling in cash any such “earn-out” or similar deferred purchase price payment as long such settlement includes (x) a full unconditional release of claims by the Ordinary Course of Business;
(r) except in the Ordinary Course of Business, sell, transfer, license, lease, encumber or dispose of any rights to Company Intellectual Property Assets or Company Software, or enter into any commitment or transaction counterparty with respect to any Company Intellectual Property Assets outside the Ordinary Course of Business;
such payment and (sy) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization;
(t) commence, waive, release, assign, settle or compromise any pending or threatened Action which is (i) material to the business no post-Closing obligations of the Company and its Subsidiaries, taken as a whole, (ii) otherwise involves the payment by the Company Partnership or any of its Subsidiaries of an amount in excess of $2,000,000 individually or $5,000,000 in the aggregate (excluding any amounts that may be paid under existing Insurance Policies) or (iii) imposes material non-economic obligations upon the Company or any of its Partnership Subsidiaries;; and
(uxi) authorize any of, or commit or agree to take any of, the foregoing actions in respect of which it is restricted by the provisions of this Section 6.3.
(c) Promptly after the execution of this Agreement, the Partnership shall deliver a written notice (including via e-mail) to the officers and employees of the Partnership and the Partnership Subsidiaries who are directly responsible for the matters described in clauses (i)-(xi) of Section 6.3(b), which officers and employees are set forth in Section 6.3(c) of the Partnership Disclosure Letter, informing such officers and employees of the obligations of the Partnership and the Partnership Subsidiaries contained in Section 6.3(a) and (b).
(d) In furtherance and not in limitation of Section 6.3(a) hereof, GP agrees that during the period commencing on the date hereof and ending on the earlier of (x) the Closing Date and (y) termination of this Agreement pursuant to Section 9.1, except as set forth in Section 6.3(d) of the Partnership Disclosure Letter, GP shall not engage in any material activities, or conduct any material business or operations, or incur any material liabilities or obligations (in each case other than in connection with directly or indirectly holding equity interests in, and acting as general partner of, the Ordinary Course Partnership, and engaging in any action, actions or activities incidental thereto (including the negotiation, execution and consummation of Business, amend, modify or terminate any insurance policy in a manner that is adverse to the Company and its Subsidiaries or which reduces coverage under any such insurance policy; provided that any amendment, modification or termination to the Company’s this Agreement and the Company Subsidiaries’ existing cyber-security insurance policy shall require transactions contemplated hereby, as well as engaging in any other acts, actions or activities incidental thereto)) without the prior written consent of the Purchaser;Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(ve) intentionally take Nothing contained in this Agreement shall give Parent or fail Merger Subs, directly or indirectly, any right to take control or direct the operations of GP, the Partnership or the Partnership Subsidiaries prior to the Closing. Prior to the Closing, GP and the management of GP, the Partnership and the Partnership Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over GP, the Partnership and the Partnership Subsidiaries and notwithstanding anything contained herein to the contrary, no consent of Parent or Merger Subs shall be required with respect to any matter set forth in this Section 6.3 or elsewhere in this Agreement to the extent that the requirement of such consent or not taking any action knowingly or refraining from taking any action that would otherwise require consent could violate any applicable Law.
(f) Notwithstanding anything contained in breach this Agreement to the contrary, the Partnership and the Partnership Subsidiaries shall be permitted to periodically settle intercompany balances (including through cash dividends and capital contributions). The Partnership and the Partnership Subsidiaries are permitted to dividend all Cash and Cash Equivalents of the Partnership and the Partnership Subsidiaries to Sellers immediately prior to Closing.
(g) Each of the Merger Subs agrees that, from the date of this Agreement for to the purpose of materially delaying Closing, it shall not, directly or preventing the consummation of the transactions contemplated hereby (indirectly, engage in any business activities or incur any liabilities or obligations other than as required expressly contemplated by Law); or
(w) take, authorize, or commit, resolve, offer or agree to take any of the foregoing actionsthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Applied Industrial Technologies Inc)
Conduct of Business Pending the Closing Date. During Pending the period from Closing Date, and except as otherwise consented to by Purchaser:
(a) Seller shall carry on the business of the Branches substantially in the same manner as heretofore, including, without limitation, maintaining Seller’s customary lending and underwriting criteria, and Seller shall not, with regard to the Branches, engage in any activities or transactions outside its ordinary course of business as conducted as of the date of hereof except for activities or transactions contemplated by this Agreement and continuing until Agreement, provided however, that Seller need not, in its sole discretion, advertise or promote new or substantially new customer services in the earlier principal market area of the termination of this Agreement in accordance with Section 10.1 or the ClosingBranches, except (w) as may and further provided that Seller may, but shall not be required by a Governmental Entity or Lawto, maintain the current number of Employees at the Branches.
(xb) to the extent the Purchaser Seller shall otherwise consent in writing, which consent shall not unreasonably be withheld, delayed or conditioned, (y) as otherwise expressly provided or expressly permitted in this Agreement and (z) as provided in Section 6.3 of the Company Disclosure Letter, the Company shall (and the Sellers shall cause the Company to) conduct use its and the Company Subsidiaries’ businesses in all material respects in the Ordinary Course of Business, and in accordance, in all material respects, with all applicable Laws and use reasonable best efforts to preserve its business operation as conducted at the material assets and properties of Branches, to preserve for Purchaser the Company and its Subsidiaries in good repair and condition, keep available the services will of its present officerscustomers and others doing business with the Branches, and, and to exercise reasonable efforts to cooperate with and assist Purchaser in assuring the Ordinary Course orderly transition of Business, preserve the current material such business relationships of the Company and its Subsidiariesfrom Seller to Purchaser. Without limiting the generality of Notwithstanding the foregoing, except (1) as may Seller and Purchaser acknowledge and agree that, if, following the execution of this Agreement, a Branch customer requests that such customer’s deposit or other account relationship remain with Seller and not be required by a Governmental Entity or Lawtransferred to Purchaser, (2) to the extent the that Seller and Purchaser shall otherwise consent cooperate to transfer such deposit or account relationship to an affiliate of Seller. Nothing herein shall be construed as requiring Seller to engage in writing, which consent shall not unreasonably be withheld, delayed any activities or conditioned, (3) efforts outside the ordinary course of business as otherwise specifically provided in this Agreement and (4) as provided in Section 6.3 of the Company Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company agrees not to, and the Sellers agree not to permit the Company to, take any of the following actions (and to cause the Company’s Subsidiaries not to take such actions):
(a) amend its certificate of incorporation or its by-laws, articles of organization, limited liability company agreement, partnership agreements or equivalent organizational documents;
(b) (i) authorize for issuance, issue, deliver, sell, pledge, transfer, grant, dispose of or encumber any shares of capital stock or other equity or voting interests of the Company or any of its Subsidiaries or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of the Company Shares or the value of the Company or any of its Subsidiaries or any part thereof, provided, however, that none of the foregoing shall prohibit (A) the issuance of Company Shares upon the conversion or exercise of convertible securities outstanding as of the date of this Agreement or (B) transactions involving solely securities of a wholly owned Subsidiary of the Company among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, recapitalization or other similar transaction, 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, except for any such transaction by a wholly-owned Subsidiary of the Company which remains a wholly-owned Subsidiary of the Company after consummation of such transaction or (iii) enter into any amendment of any term of any of its outstanding securitiespresently conducted.
(c) (i) except Seller shall not grant any increase in compensation or benefits to the extent required under existing plans employees or arrangements set forth in Section 4.9(a) officers of the Company Disclosure Letter, or Branch except as otherwise required by law; not pay any bonus except pursuant to provision of the applicable Law, increase any compensation program or benefit to, or, except in connection with plan adopted by Seller’s Board of Directors prior to the hiring date of new Company Personnel in the Ordinary Course of Business, this Agreement; not enter into or amend any employment or severance agreement with, any officer, director or other Company Personnel, (ii) grant any bonuses to any Company Personnel that would not otherwise be paid agreements with officers at or prior to the Closing, (iii) enter into, adopt, modify or amend any Company Pension Plan, Company Benefit Plan or Company Other Plan (including any stock option, stock benefit or stock purchase plan) or, except as contemplated by this Agreement, accelerate the vesting of any compensation (including equity based awards) for the benefit of any Company Personnel or grant or amend any award under any Company Pension Plan, Company Benefit Plan or Company Other Plan (including the grant of any equity or equity based or related compensation), (iv) provide any funding for any rabbi trust or similar arrangement or take any other action to fund or secure the payment of any compensation or benefit, (v) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than as required under a Company Contract with a Key Employee set forth in Section 4.9(a) of the Company Disclosure Letter or, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the Ordinary Course of Business), or (vi) terminate any Key Employee other than for cause (including misconduct or breach of company policy);Branches.
(d) (i) declare, set aside or pay any dividend or Seller shall not make any other distribution or payment (whether change in cash, stock or other property or any combination thereof) the interest rates paid with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company to another Subsidiary of deposits at the Company or to the Company), or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any Branch unless such stock or other securities;
(e) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Lien (except Permitted Liens), other than, rate changes are affected system-wide for those branches in the case “Middle Tennessee Region” of both (i) and (ii), in the Ordinary Course of Business;
(f) enter into any Contract that is a Sponsorship Agreement or any Contract with a Card Association, provider of front end or back end payment processing services, or with a payment gateway, or modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, or waive, release or assign, in a manner which is adverse to the Company in any material respect, any rights under any Primary Business Contract;
(g) (i) modify, amend or change any of the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines for customers in a manner which is less restrictive than those in place as of the date hereof or (ii) other than in compliance with the Company’s or the Company Subsidiaries’ credit review or underwriting guidelines (including the exceptions criteria and process contemplated thereby) as implemented in the Ordinary Course of Business, authorize any new customer to process transactions through the Company’s or the Company Subsidiaries’ processing system or otherwise enter into a customer agreement or relationship with any new customer;
(h) (i) enter into any contract that, if entered into as of or prior to the date hereof, would constitute a Company Contract pursuant to clauses (i), (ii), (ix) or (xii) of Section 4.14(a) or otherwise enter into any lease with respect to any material assets that is not otherwise terminable without penalty on ninety (90) days’ notice or less or (ii) except in the Ordinary Course of Business, modify, amend, cancel, terminate, renew, extend or request any change in, or agree to any change in, any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f)) or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed by clause (k) below) in a manner that is adverse to the Company in any material respect, provided that in no event shall the Company enter into any contract or group of related contracts which require or involve the payment by the Company or any of the Company Subsidiaries on an annual basis of more than $1,000,000 not contemplated by the budget provided by the Company to the Purchaser (excluding any one-time signing bonuses payable in connection with new partner agreements in the Ordinary Course of Business), or (ii) waive, release or assign, in any respect in a manner which is adverse to the Company in any material respect, any rights under any Company Contract (other than the Primary Business Contracts, which are addressed in clause (f));
(i) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk);
(j) make or agree to make any loans, advances or capital contributions to, or other investments in, any other Person, except in the Ordinary Course of Business;
(k) make any capital expenditures except in accordance with the budget provided by the Company to the Purchaser, other than capital expenditures not otherwise contemplated by such budget that do not exceed $500,000 individually or $2,000,000 in the aggregate;
(l) (i) merge with, enter into a consolidation with or otherwise acquire an interest of 50% or more of the outstanding equity interests in any Person or acquire a substantial portion of the assets or business of any Person (or any division or line of business thereof), (ii) otherwise acquire (including, through leases, subleases and licenses of real property) any assets, except, in the case of this clause (ii), in the Ordinary Course of Business, or (iii) enter into any new line of business;
(m) create, incur or assume any indebtedness for borrowed money, or issue any debt securities or any right to acquire debt securities, assume, guarantee, or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person, except (i) for indebtedness incurred in the Ordinary Course of Business under the Company’s existing borrowing arrangements which at any time shall not exceed $10,000,000, (ii) for any indebtedness solely involving the Company and/or direct or indirect wholly owned Subsidiaries of the Company, (iii) indebtedness for borrowed money incurred to replace, renew, extend, or refinance any existing indebtedness for borrowed money on terms materially no less favorable than those of the Company’s existing arrangements, or (iv) guarantees by the Company of indebtedness for borrowed money of any Company Subsidiary, which indebtedness is incurred in compliance with this Section 6.3(m);
(n) accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any accounts receivable owed to the Company or any Company Subsidiary, with or without recourse, including any rights or claims associated therewith, other than in the Ordinary Course of Business;
(o) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP or as required by a Governmental Entity or quasi-Governmental Entity (including the Financial Accounting Standards Board or any similar organization) or (ii) as required by applicable Law;
(p) write up, write down or write off the book value of any of its assets, other than as may be required by GAAP in the Ordinary Course of Business;
(q) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates or Company Personnel, other than, solely with respect to Company Personnel, (i) as permitted by Section 6.3(c) and (ii) in the Ordinary Course of Business;
(r) except in the Ordinary Course of Business, sell, transfer, license, lease, encumber or dispose of any rights to Company Intellectual Property Assets or Company Software, or enter into any commitment or transaction with respect to any Company Intellectual Property Assets outside the Ordinary Course of Business;
(s) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or any other reorganization;
(t) commence, waive, release, assign, settle or compromise any pending or threatened Action which is (i) material to the business of the Company and its Subsidiaries, taken as a whole, (ii) otherwise involves the payment by the Company or any of its Subsidiaries of an amount in excess of $2,000,000 individually or $5,000,000 in the aggregate (excluding any amounts that may be paid under existing Insurance Policies) or (iii) imposes material non-economic obligations upon the Company or any of its Subsidiaries;
(u) other than in the Ordinary Course of Business, amend, modify or terminate any insurance policy in a manner that is adverse to the Company and its Subsidiaries or which reduces coverage under any such insurance policy; provided that any amendment, modification or termination to the Company’s and the Company Subsidiaries’ existing cyber-security insurance policy shall require the prior written consent of the Purchaser;
(v) intentionally take or fail to take any action knowingly in breach of this Agreement for the purpose of materially delaying or preventing the consummation of the transactions contemplated hereby (other than as required by Law); or
(w) take, authorize, or commit, resolve, offer or agree to take any of the foregoing actionsSeller.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Hopfed Bancorp Inc)
