Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to: (i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and (ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity. (b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not: (A) amend its articles of incorporation or bylaws or similar organizational documents; (B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities; (C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement; (D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries; (E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business); (F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business); (G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business; (H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business; (I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity; (J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates; (K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes; (L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or (M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing.
Appears in 3 contracts
Samples: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Anchorage Capital Group, L.L.C.)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by provided in this Agreement, the Transaction Documents Plan of Arrangement or applicable Lawthe Disclosure Letter or except as it may relate to the continuance of SIL from the Jersey jurisdiction into Canada under the CBCA, by which is expected to occur prior to the performance of any Material Contract that was Previously DisclosedEffective Date, or with the prior written consent of the InvestorPurchaser Parties, between the date of this Agreement and the Closingwhich consent shall not be unreasonably withheld, the Company Silanis Companies shall, and during the Company Pre-Closing Period, conduct the Business in the Ordinary Course and, without limiting the generality of the foregoing, the Silanis Companies shall cause each Company Subsidiary tonot:
(i) use commercially take any affirmative action or omit to take any reasonable efforts to conduct action within its business only control, as a result of which action or omission any of the changes, events or conditions described in the ordinary course of business; andSection 4.2(c) would occur;
(ii) use commercially reasonable efforts to incur, create, refinance, replace, prepay, guarantee or assume any Indebtedness, other than Indebtedness incurred in the Ordinary Course of the Business not in excess of $100,000 in the aggregate;
(iii) (A) preserve increase the present business operationsbase wage or salary payable to, organization (including officers or any other components of compensation and employees) and goodwill employee benefits of, any employee or consultant of the Company and any Company Subsidiary and Corporation, (B) preserve grant any retention, severance or termination pay to, or enter into any employment, bonus, change of control or severance agreement with, or pay any amount not otherwise due to, any such individual, or (C) establish, adopt, enter into, amend or terminate any Company Plan, except as required by applicable Law;
(iv) (A) make any acquisitions (including by merger, consolidation or acquisition of stock or assets or any other business relationships combination) of any corporation, partnership, other business organization or any division thereof or any capital stock therein or a substantial portion of the assets thereof, or any Real Property or (B) enter into any joint venture, strategic alliance, partnership agreement, stockholders, limited liability company agreement or similar agreement with customersany Person;
(v) enter into, suppliersamend, consultants and others having business dealings with modify, terminate, cancel or waive any material claims or rights under any Material Contract, which if so entered into, amended, modified, terminated, cancelled or waived would reasonably be expected to (i) prevent or materially delay or impair the Company; providedability of the Silanis Companies to consummate the Arrangement, however, that nothing in this clause or (ii) shall limit or require any actions that materially impair the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) ability of the Disclosure Schedule, with Corporation to conduct the prior written consent of Business in the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documentsOrdinary Course;
(Bvi) (1) declareterminate, set aside cancel or pay take or fail to take any distributions or dividends onaction that the Corporation knows, or make any other distributions (whether or, if acting reasonably, should know in cashthe Ordinary Course of managing its insurance coverages, securities or other property) will result in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance lapse of any other securities material insurance policy of the Corporation in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding effect on the date of this Agreement;
(Dvii) commence a voluntary procedure for reorganizationreclassify, arrangementsplit, adjustmentcombine, relief subdivide or composition of indebtedness redeem, purchase or bankruptcy, receivership or a similar proceedingotherwise acquire, or consent offer to the entry of an order for relief in an involuntary procedure for reorganizationredeem, arrangementrepurchase or otherwise acquire, adjustmentdirectly or indirectly, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiariesvoting or equity securities of the Silanis Companies or securities convertible or exchangeable into or exercisable for any of their voting or equity securities, other than in connection with the exercise of previously granted Options, or pursuant to the terms and conditions of any issued and outstanding securities of any of the Silanis Companies and/or any agreements governing such securities entered into between any of the Silanis Companies and the holders of such securities prior to the date hereof;
(viii) issue, grant, deliver, sell, pledge or otherwise dispose or encumber, or authorize the issuance, grant, delivery, sale, pledge or other encumbrance of any voting or equity securities of the Silanis Companies or securities convertible or exchangeable into or exercisable for any of their voting or equity securities, or any options, warrants or other liquidation rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than in connection with the exercise of previously granted Options, or pursuant to the terms and conditions of any issued and outstanding securities of any of the Silanis Companies and/or any agreements governing such securities entered into between any of the Silanis Companies and the holders of such securities prior to the date hereof;
(ix) adopt a plan of liquidation, wind-up or dissolution of the any Silanis Company or any of resolutions providing for the Company Subsidiaries;
(E) terminateliquidation, enter into, amend, modify (including by way of interpretation), renew wind-up or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect dissolution of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregateSilanis Company; or
(Mx) enter into authorize any contract with respect toof, or otherwise commit or agree to take any of, the foregoing actions.
(b) The Silanis Companies shall promptly advise the Purchaser Parties orally and, if then requested, in writing of any event, change or commit development that has resulted in, or that to do, any the knowledge of the foregoingSilanis Companies, would reasonably be expected to constitute, a Material Adverse Effect, or resulted in any material adverse change in any fact set forth in the Disclosure Letter.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement (Vasco Data Security International Inc)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx graxx x xxxx or xx security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing.
Appears in 2 contracts
Samples: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp)
Conduct of Business Prior to Closing. (a) Except From the Effective Date until the Closing or earlier termination of this Agreement, except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of provided in this Agreement and the ClosingAgreement, the Company Manager shall, and the Company Contributors shall cause each Company Subsidiary the Manager to:
: (i) use commercially reasonable efforts to conduct its business only the Business in the ordinary course course, consistent with past practice and in compliance with the requirements of businessthe Management Agreement; and
(ii) use commercially reasonable efforts to preserve substantially intact its present organization; (Aiii) preserve use commercially reasonable efforts to keep available the services of its present business operations, organization (including officers and employees) employees and goodwill of all other Persons who provide material services to the Company REIT and any Company Subsidiary its subsidiaries; and (Biv) use commercially reasonable efforts to preserve business its relationships with customers, suppliers, consultants and others having business dealings with it relating to the Company; providedBusiness. Without limiting the generality of the foregoing, however, that nothing except as otherwise expressly provided in this clause (ii) shall limit or require any actions that Agreement, from the Board of Directors mayEffective Date to the Closing, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with without the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction DocumentsSpecial Committee, the Company Manager shall not, and the Contributors shall cause the Company Subsidiaries to notManager not to:
(Aa) amend its articles of incorporation sell, lease, Encumber, transfer, license or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance dispose of any other securities in respect ofTransferred Assets, in lieu of Contracts or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trusteeTransferred Intellectual Property, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, case except in the ordinary course of businessbusiness (for the avoidance of doubt, the Manager shall not be restricted from making any distributions of cash to its members at or prior to Closing);
(b) enter into, amend or make, grant or promise terminate any bonus or material Contract;
(c) fail to timely pay any wage, salary or compensation increase account payable relating to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors Business in the ordinary course of business) or make, grant or promise any increase business other than amounts that are subject to dispute in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)good faith;
(Fd) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate that would adversely affect the vesting, exercisability or payment (or fund or secure REIT's qualification as a real estate investment trust within the payment) meaning of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any Section 856 of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business)Code;
(Ge) make any other material change in employment terms any financial accounting principles or practices, in each case except for any of its directors, officers, employees and consultants outside the ordinary course of businesssuch change required by a change in GAAP or applicable Law;
(Hf) incur enter into any indebtedness for borrowed money material commitment or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for transaction relating to the obligations of, any other person, Business except in the ordinary course of business;
(Ig) implement enter into any new line of business;
(h) incur, create, assume or adopt guarantee any Indebtedness;
(i) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, affiliates, agents or consultants), make any change in its accounting principlesexisting borrowing or lending arrangements for or on behalf of such Persons, practices or methodologies, other than as may be required by GAAP enter into any "keep well" or applicable accounting requirements similar agreement to maintain the financial condition of a Governmental Entityanother entity;
(Jj) change (or permit to be changed) any accounting or Tax procedure, method or practice (including any method of accounting for Tax purposes), make, change or revoke (or permit to be made, changed or revoked) any Tax election, amend any Tax Return, or settle or compromise any actionTax liability;
(i) increase in any manner the compensation or benefits of any Business Employee, suitor pay or otherwise grant any benefit not required by any Plan with respect to any Business Employee, claim or proceeding against itenter into any contract to do any of the foregoing, except for an action, suit, claim or proceeding that is settled in each case other than:
(A) awarding annual performance-related merit increases in base salaries made in the ordinary course of business in to executive officers of the Manager by an amount or for consideration not in excess of $500,000 individually or $1,000,000 that in the aggregate and that would does not impose any material restriction on the business exceed five percent (5%) of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliatessuch officers' current aggregate annual base salaries;
(KB) change any material accounting method with respect awarding annual performance-related merit increases in base salaries or base wages made in the ordinary course of business to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent all Business Employees (other than executive officers of the Manager) by an amount that in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver the aggregate does not exceed five percent (5%) of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxessuch employees' current aggregate annual base salaries and base wages;
(LC) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) increasing annual bonus opportunities made in the ordinary course of business consistent with past practice;
(D) providing payments and benefits required under the terms of existing Manager Plans as in effect on the date hereof;
(E) making any distributions and payments authorized to be made from the transition/retention bonus pool contemplated by Section 4.11(d); or
(F) to the extent required by Law;
(ii) except to the extent required by applicable Law or the terms of any Manager Plan as in effect on the date hereof:
(A) enter into, adopt, amend, terminate or waive any right under any Plan (2including any employment or consulting arrangement) or any collective bargaining agreement; or
(B) accelerate any rights or benefits, or, other than in the ordinary course of business and consistent with past practice, make any determinations or interpretations with respect to transactions involving any Manager Plan;
(l) commit to any single or aggregate capital expenditure or commitment in excess of $50,000 (on a consolidated basis);
(m) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof;
(n) cancel any debts or waive any claims or rights of substantial value relating to the Business or the Manager;
(o) enter into any lease for real property or assign its rights under, amend or terminate any lease with respect to real property;
(p) issue, sell or grant any Equity Interests of the Manager, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any Equity Interests of the Manager, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any Equity Interests of the Manager or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any Equity Interests of the Manager or any other securities in respect of, in lieu of, or in substitution for, the Equity Interests of the Manager that are outstanding on the Effective Date;
(q) settle or compromise any claim, action, suit or proceeding pending or threatened against it or relating to the Business, other than any such settlement or compromise in the ordinary course of business consistent with past practice that involves solely payment of money damages in an amount not in excess of $150,000,000 50,000 individually or $100,000 in the aggregate that is paid prior to Closing; provided, however, that neither the Manager nor any of its Subsidiaries shall agree to, or shall, settle any claim, action, suit or proceeding if the settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Business;
(r) hire or terminate, or enter into any transaction or any contract with, any Business Employee, or promote or appoint any Person to a position of executive officer or director of the Manager;
(s) make or authorize any change in its organizational documents;
(t) abandon, encumber, convey title (in whole or in part), exclusively license or grant any right or other licenses to Intellectual Property;
(u) take, or agree or otherwise commit to take, or cause the REIT to take or to agree or otherwise commit to take, any action that would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Transactions; or
(Mv) enter into any contract with respect totake, or otherwise agree or otherwise commit to dotake, any of the foregoingforegoing actions or any other action that if taken would reasonably be expected to prevent the satisfaction of any condition set forth in Section 2.02(b).
Appears in 2 contracts
Samples: Contribution Agreement (CorEnergy Infrastructure Trust, Inc.), Contribution Agreement (CorEnergy Infrastructure Trust, Inc.)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the each Investor, between the date of this Agreement hereof and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i1) use commercially reasonable efforts to conduct its business only in the ordinary course of business; andcourse;
(ii2) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business the present relationships with persons having business dealings with the Company (including strategic partners, customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.subcontractors);
(b3) Except as set forth in Section 3.1(buse commercially reasonable efforts to maintain (A) all of the Disclosure Schedulematerial assets and properties of, or used by, the Company or any Company Subsidiary in its current condition, with the prior written consent exception of ordinary wear and tear, and (B) insurance upon all of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, properties and assets of the Company shall and shall cause the Company Subsidiaries in such amounts and of such kinds comparable to not:
(A) amend its articles that in effect on the date of incorporation or bylaws or similar organizational documentsthis Agreement;
(B4) not (1A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18)or the Capital Stock or equity securities of any of its Subsidiaries; (2B) split, combine or reclassify any of its Capital Stock or the Capital Stock or equity securities of any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securitiessecurities or the Capital Stock or equity securities of any of its Subsidiaries; or (3C) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securitiessecurities or the Capital Stock or equity securities of any of its Subsidiaries;
(C5) not, and shall cause each Company Subsidiary to not, issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital StockStock of the Company or any Company Subsidiary, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securitiessecurities of the Company or any Company Subsidiary, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D6) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) not terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offerofficer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultantsemployees, in the ordinary course of businessbusiness consistent with past practices) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors directors, amounts that do not exceed $50,000 per year per employee in the ordinary course of businessaggregate) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)arrangement;
(F7) not terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of businessbusiness consistent with past practices), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any stock options, restricted stock, other equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of businessbusiness consistent with past practices);
(G) 8) not make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practicepractice or enter into any transaction with an Insider;
(9) notwithstanding any other provision hereof, use all commercially reasonable efforts not to take, or (2) with respect omit to take, any action that is reasonably likely to result in any of the conditions precedent to the Closing not being satisfied, or any action that is reasonably likely to materially impair the Company’s or any of the Company Subsidiaries’ ability to perform their obligations under the Transaction Documents or to consummate the transactions involving not in excess of $150,000,000 in contemplated hereby, except as required by Law or the aggregate; orTransaction Documents;
(M10) not enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingactions set forth in the foregoing clauses (4) through (8) and clause (11) of this Section 3.1; and
(11) not make or change any material Tax election, change a material annual accounting period, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, enter into any material closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Atlantic Capital Bancshares, Inc.), Stock Purchase Agreement (First Security Group Inc/Tn)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by During the Transaction Documents or applicable Lawperiod commencing on the date hereof and ending on the Closing Date, by the performance of any Material Contract that was Previously Disclosed, or except with the prior written consent of the Investor, between the date of this Agreement and the ClosingPurchaser, the Company shall, and the Company Seller shall cause each Relevant Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course Ordinary Course of business; and
Business except (i) in compliance with any change in applicable Law or (ii) use commercially reasonable efforts to (A) preserve as contemplated under this Agreement. Without limiting the present business operations, organization (including officers and employees) and goodwill generality of the Company and any Company Subsidiary and (B) preserve business relationships with customersforegoing, suppliersexcept as the Purchaser consents in writing in advance, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written which consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and Seller shall cause the each Relevant Company Subsidiaries to notnot to:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(Ca) issue, deliversell, sellpledge, transfer, grant, pledge or otherwise dispose of or encumber any Capital Stockshares of capital stock or other equity interests of any Relevant Company, convertible bonds, bonds with warrants or any other voting securities or any securities convertible into or exchangeable forexercisable for any shares of capital stock of any Relevant Company or equity interests, any rights, warrants, options, calls or commitments to acquire or related to any shares of capital stock or other equity interests with respect to the Company, any awards under any bonus, incentive or other compensation plan or arrangement which would result in the right to receive shares or other equity interests of any Relevant Company (including the grant of stock options) or modify or amend any right of any holder of outstanding shares of capital stock of, or any rightsoptions with respect to any Relevant Company;
(b) enter into, warrants assign, transfer, extend, modify or options terminate any Material Contracts;
(c) amend any of the Organizational Documents of any Relevant Company or take any action with respect to acquire, any such Capital Stockamendment or any recapitalization, voting securities restructuring reorganization, liquidation or convertible or exchangeable securities, other than any issuance of Common Stock on exercise dissolution of any compensatory Relevant Company;
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock options outstanding on or property, with respect to any capital stock or other equity or ownership interest in any Relevant Company;
(e) take any action that would require resolutions of the date shareholders meeting of any Relevant Company, except for those resolutions that may be required to effectuate and carryout the terms and conditions of this Agreement;
(Df) commence a voluntary procedure for reorganizationborrow from financial institutions, arrangement, adjustment, relief issue any debt securities or composition of otherwise incur any indebtedness or bankruptcyguarantee any indebtedness; assume, receivership guarantee or a similar proceeding, or consent to endorse any obligations of any other Person (“Indebtedness”) which would result in the entry increase of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition the outstanding amount of indebtedness or bankruptcy, receivership or a similar proceeding or consent to Indebtedness of any Relevant Company as of the appointment date of a receiver, liquidator, custodian or trusteethis Agreement by more than KRW 50,000,000, in each casethe aggregate;
(g) sell, with respect to transfer, lease, license or otherwise dispose of assets, properties or businesses of any Relevant Company other than inventory in any single transaction in excess of KRW 50,000,000 or series of related transactions in excess of KRW 200,000,000 in the Company aggregate; incur, create or assume any Encumbrance on any of the Company Subsidiaries, assets or properties of any other liquidation or dissolution of the Company or any of the Company SubsidiariesRelevant Company;
(Eh) terminate, enter into, amend, modify (including by way of interpretation), renew or grant make any waiver or consent under any employment, offer, consulting, severance, change in control the accounting methods, policies, practices and procedures of any Relevant Company; change the normal level of inventories or similar contractsupplies, agreement or arrangement with any directoralter its practice or policy in collection of accounts receivable or payment of accounts payable, officer, employee or consultant (other than, with respect to non-executive officers or consultants, than in the ordinary course Ordinary Course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)Business;
(Fi) terminatesplit, enter intocombine, establishsubdivide, adoptreclassify or redeem, amendor purchase or otherwise acquire, modify any outstanding securities of any Relevant Company, or undertake a capital reduction of any Relevant Company;
(including by way j) take any action to accelerate the payment, funding or vesting of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, severance, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder thereunder, other than in the Ordinary Course of Business;
(k) assume or add enter into or renegotiate or renew any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization of any Relevant Company;
(l) make any loans or capital contributions to, or investments in, any other Person;
(m) settle any pending or threatened claims, actions, arbitrations, disputes or other proceedings;
(n) make any capital expenditure in excess of KRW 100,000,000 individually or in the aggregate;
(o) acquire (by merger, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division or business unit or material asset thereof or any equity interest therein;
(p) terminate or permit to lapse any of the Governmental Approvals or any third party consents, exemptions or waivers used in or necessary for legal existence or compliance with Laws applicable to, or the conduct of the business of each Relevant Company;
(q) enter into any new participants transaction with its Affiliate, officer or director of any Relevant Company;
(r) other than pursuant to employment agreements and/or the rules of employment of any Relevant Company existing as of the date of this Agreement, (A) make any material change in the terms and conditions of employment of any Employee or (B) hire, employ or lay off Employees which may incur any liabilities; grant any increase in the compensation of their Employees other than pursuant to employment agreements and/or the rules of employment of any Relevant Company existing as of the date of this Agreement; pay or provide compensation or benefit to its Employees other than pursuant to employment agreements and/or the rules of employment of any Relevant Company existing as of the date of this Agreement;
(s) have any Tax election made or materially changed; have any claim, notice, audit report or assessment in respect of Taxes settled or compromised (or agreement with respect thereto); execute or agree upon any Tax allocation agreement, Tax sharing agreement, advance pricing agreement, cost sharing agreement, pre-filing agreement, Tax indemnity agreement or closing agreement relating to any non-qualified retirement plans Tax entered into; have any annual Tax accounting period or method of Tax accounting changed or adopted; file any Tax petition, Tax complaint or administrative Tax appeal filed; have any right to claim a Tax refund surrendered or foregone; or have any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment consented to; or
(ort) authorize, approve or enter into any agreement, arrangement or commitment with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing.
Appears in 2 contracts
Samples: Share Purchase Agreement (SolarEdge Technologies Inc), Share Purchase Agreement (SolarEdge Technologies Inc)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the each Anchor Investor, between the date of this Agreement hereof and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i1) use commercially reasonable efforts to conduct its business only in the ordinary course of business; andcourse;
(ii2) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business the present relationships with persons having business dealings with the Company (including strategic partners, customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.subcontractors);
(b3) Except as set forth in Section 3.1(buse commercially reasonable efforts to maintain (A) all of the Disclosure Schedulematerial assets and properties of, or used by, the Company or any Company Subsidiary in its current condition, with the prior written consent exception of ordinary wear and tear, and (B) insurance upon all of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, properties and assets of the Company shall and shall cause the Company Subsidiaries in such amounts and of such kinds comparable to not:
(A) amend its articles that in effect on the date of incorporation or bylaws or similar organizational documentsthis Agreement;
(B4) not (1A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18)Stock; (2B) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3C) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C5) not issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D6) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) not terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offerofficer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants(i) a new chief financial officer and (ii) employees, in the ordinary course of businessbusiness consistent with past practices) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors directors, amounts that do not exceed $50,000 per year per employee in the ordinary course of businessaggregate) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)arrangement;
(F7) not terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of businessbusiness consistent with past practices), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any stock options, restricted stock, other equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of businessbusiness consistent with past practices);
(G) 8) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of businessbusiness or enter into any transaction with an Insider;
(H9) incur notwithstanding any indebtedness for borrowed money or issue any debt securities or assumeother provision hereof, guarantee or endorseuse all commercially reasonable efforts not to take, or otherwise become responsible for the obligations ofomit to take, any other personaction that is reasonably likely to result in any of the conditions precedent to the Closing not being satisfied, or any action that is reasonably likely to materially impair the Company’s or any of the Company Subsidiaries’ ability to perform their obligations under the Transaction Documents or to consummate the transactions contemplated hereby, except in as required by Law or the ordinary course of businessTransaction Documents;
(I10) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing; and
(11) not make or change any material Tax election, change a material annual accounting period, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, enter into any material closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax.
Appears in 2 contracts
Samples: Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc)
Conduct of Business Prior to Closing. (a) Except Until the Closing Date, the Selling Stockholders shall cause the Companies: (A) except as otherwise expressly required contemplated or permitted by this Agreement, to conduct their respective business in the Transaction Documents ordinary course, consistent with past practice, and, in each case, in accordance with applicable Law and, to the extent possible, in a manner consistent with this Agreement; and (B) to not, without the prior written consent of UEC, enter into any material transaction or applicable Lawincur any material Liability outside of the ordinary course of their respective businesses, by consistent with past practice, or so as to cause one or more of the performance conditions precedent for the benefit of UEC set out in Article 6 to not be satisfied. Without limiting the foregoing, other than the Approved Distribution, none of the Companies has committed, and prior to the Closing Date shall not make or commit itself, without the written consent of UEC, to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital;
(iv) effect any subdivision, consolidation or reclassification of its share capital;
(v) acquire or have the use of any Material Contract that property from a Person with whom it was Previously Disclosednot dealing with at arm’s length;
(vi) dispose of anything to a Person with whom it was not dealing with at arm’s length for proceeds less than the fair market value thereof; or
(vii) make, commit or confer upon, or pay to or to the benefit of, any entity, any benefit having monetary value, any bonus or any salary increases except in the normal course of its business.
(b) Until the Closing Date, UEC shall, except as otherwise contemplated or permitted by this Agreement, conduct its business in the ordinary course, consistent with past practice, and in accordance with applicable Law and, to the extent possible, in a manner consistent with this Agreement and not, without the prior written consent of the InvestorSelling Stockholders, between enter into any transaction which would cause one or more of the date conditions precedent for the benefit of this Agreement and the ClosingSelling Stockholders set out in Article 6 to not be satisfied.
(c) Until the Closing Date, however, subject to the following, UEC shall be prohibited from effecting or entering into an agreement to effect any issuance by UEC of Common Stock or Common Stock Equivalents (or a combination of units thereof) at an issuance or deemed effective issuance price below the Deemed Issuance Price per Acquisition Share herein. Any such UEC issuance shall include, without limitation, any variable rate transaction (a “Variable Rate Transaction”), which means a transaction in which UEC: (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the Company trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of UEC or the market for the Common Stock; or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby UEC may issue securities at a future determined price. Notwithstanding the foregoing, this section 5.2(c) shall not apply in respect of an Exempt Issuance or the pending issuance by UEC at its market price from time to time prior to Closing Date of not greater than 750,000 restricted (not to be registered for resale) shares of Common Stock pursuant to a pending settlement with existing acquisition and service creditors of UEC, except that no Variable Rate Transaction shall be an Exempt Issuance.
(d) Until the Closing Date, AUC shall, except as otherwise contemplated or permitted by this Agreement: (i) cause each of the Real Property and Water Rights owned, held or hereafter acquired by or for AUC and necessary or appropriate to the operation of a mine or mines upon the Real Property to be kept in full force and effect by the payment of whatever sums may become payable and by the fulfillment of whatever other obligations, and the Company performance of whatever other acts may be required to the end that forfeiture or termination of each such interest shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only be prevented unless the termination, forfeiture or other relinquishment of the interest is authorized by any operating plan or plan of operations then in the ordinary course of businesseffect thereunder; and
(ii) use commercially reasonable efforts conduct all drilling, mining, exploratory work and related operations and activities in accordance with applicable federal, state and local laws and good and minerlike practice; (iii) maintain AUC as the sole owner of, and retain exclusive possession of, all Real Property, free and clear of all liens, subject, in the case of unpatented mining and millsite claims, only to (A) preserve the present business operations, organization (including officers and employees) and goodwill paramount title of the Company United States and any Company Subsidiary Permitted Liens, and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any property subject to the leases, surface use agreements and access agreements, the respective lessors and owners; (iv) timely pay all required federal claim maintenance fees, and timely record and file in the appropriate county and federal offices adequate affidavits and notices of the Company Subsidiariestimely payment of such fees, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, and amend, modify (including by way of interpretation)relocate, renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, and locate new mining claims with respect to non-executive officers or consultants, those unpatented mining claims as reasonably necessary to protect AUC’s interest in the ordinary course Real Property; and (v) timely make all payments and perform all obligations to prevent the forfeiture or termination of business) or make, grant or promise any bonus portion of the Real Property. AUC shall not abandon all or any wageportion of the Real Property or forfeit, salary surrender or compensation increase to release any directorlease, officersublease, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance operating agreement or other employee benefit, incentive agreement or welfare contract (other than with respect to group insurance and welfare employee benefits, in instrument comprising or affecting the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingReal Property without UEC’s consent.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by provided in this Agreement or the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, Disclosure Letter or with the prior written consent of Purchaser, which consent shall not be unreasonably withheld, and to the Investorextent lawfully able to do so, between Sellers shall cause the date of this Agreement Acquired Companies to, and the ClosingAcquired Companies shall, during the Interim Period, conduct their respective Businesses in the Ordinary Course and, without limiting the generality of the foregoing, Sellers shall cause each Acquired Company not to, and no Acquired Company shall, take any affirmative action or omit to take any reasonable action within its control, as a result of which action or omission any of the representations and warranties in Section 3.2(bb) would become untrue. 47
(b) In furtherance and not in limitation of Section 5.1(a), during the Company Interim Period, except as expressly provided in this Agreement, as disclosed in Schedule 5.1 of the Disclosure Letter, or as required by applicable Law, Sellers shall cause each Company Subsidiary to:the Acquired Companies not to (unless otherwise consented to by Purchaser, which consent shall not be unreasonably withheld, to the extent lawfully able to do so):
(i) use commercially reasonable efforts declare, set aside, make or pay any dividend or other distribution in respect of or purchase, redeem or otherwise acquire, any shares of its capital stock (other than the declaration and payment in full (but not, for the avoidance of doubt, only the declaration), in each case prior to conduct its business only the Effective Time, of dividends payable solely in the ordinary course of business; andcash);
(ii) use commercially reasonable efforts transfer, issue, sell, pledge encumber or dispose of any shares in its capital, or any other interest in or with respect to (A) preserve the present business operationsit, organization (including officers and employees) and goodwill or grant options, warrants, calls or other rights to purchase or otherwise acquire any of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.foregoing;
(biii) Except as set forth effect any recapitalization, reclassification, share split, combination or like change in Section 3.1(b) the capitalization, or amend the terms of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:·any outstanding shares in its capital;
(Aiv) amend its articles of incorporation or bylaws by-laws or similar other organizational documents;
(Bv) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions capital expenditures (whether in cashincluding expenditures for additions to plant, securities property and equipment) or other property) in appropriations or commitments with respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect ofthereto, in lieu the aggregate, in excess of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities$500,000;
(Cvi) issueenter into any transaction or Contract with any officer, deliverdirector, shareholder or Affiliate of a Seller or an Acquired Company;
(vii) create, incur or assume any Indebtedness for borrowed money, other than Indebtedness incurred or assumed in the Ordinary Course that will be included in Indebtedness or repaid in full prior to the Effective Time;
(viii) change its accounting methods, principles or practices, except as required by ASPE or any applicable Law;
(ix) sell, grantassign, pledge lease, license, transfer or otherwise dispose of or encumber any Capital Stockof its material assets (including, for certainty, any other voting securities or sale of any securities convertible into or exchangeable for"corporate ID routes", being any product distribution routes currently owned and serviced by Voortman, to an Independent Distributor), except for sales of inventory in the Ordinary Course of Business, or mortgage, pledge or subject to any rights, warrants or options to acquire, Lien any such Capital Stock, voting securities or convertible or exchangeable securities, of its material assets (other than any issuance of Common Stock Permitted Liens and Liens that will be terminated on exercise of any compensatory stock options outstanding on or prior to the date of this AgreementClosing Date);
(Dx) commence a voluntary procedure for reorganizationchange or modify any of the following: (i) billing and collection policies, arrangementprocedures and practices with respect to accounts receivable or unbilled charges; (ii) policies, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, procedures and practices with respect to the Company provision of discounts, rebates or allowances (excluding any discounts, rebate or allowances that are consistent with past practice and in the Ordinary Course of the Company SubsidiariesBusiness); or (iii) payment policies, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, procedures and practices with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);accounts payable; 48
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(Jxi) settle or compromise any action, suit, action or claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates150,000;
(Kxii) make, change or rescind any election concerning Taxes or Tax Returns, change any material annual accounting period, adopt or change any accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of any statute of limitations with respect the limitation period applicable to any material Tax claim or assessment assessment, obtain or enter into any Tax ruling, agreement, contract, understanding, arrangement or take any other similar action relating to the Company filing of any Tax Return or the Company Subsidiaries, payment of any Tax;
(xiii) enter into any transaction or Contract that is material closing agreement, or surrender any right to claim a refund the Business of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) the Acquired Companies other than in the ordinary course Ordinary Course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregateBusiness; or
(Mxiv) authorize any of, or commit or agree to take, whether in writing or otherwise, any of the foregoing actions.
(c) In furtherance and not in limitation of Sections 5.1(a) and 5.1(b), during the Interim Period, except as set forth in Section 5.1 of the Disclosure Letter, Sellers shall cause each Holding Company not to, and no Holding Company shall, unless otherwise consented to by Purchaser, (i) incur any liability, or (ii) enter into any contract with respect toContract, or otherwise agree or commit (iii) consummate any transaction, of any nature whatsoever, other than pursuant to do, any of the foregoingthis Agreement.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth disclosed in Section 3.1(b5.1(a) of the Disclosure Schedule, the Company covenants that until the Closing it will use commercially reasonable efforts, and will cause its Subsidiaries to use their commercially reasonable efforts, to continue, in a manner consistent with the past practice of the Business, to keep available the services of their officers and employees, to maintain and preserve intact the Business in all material respects and to maintain in all material respects the ordinary and customary relationships of the Business with its suppliers, customers, distributors and others having business relationships with it with a view toward preserving for Parent and Acquisition Sub, on and after the Closing Date, the Business and the goodwill associated therewith. Until the Closing, the Company shall continue to operate EXECUTION VERSION and conduct the Business in the ordinary course consistent with past practice, and , without limiting the generality of the foregoing, shall not, without the prior written consent approval of the Investor Parent (which approval shall not be unreasonably withheld delayed or delayedwithheld) or as otherwise contemplated by this Agreement and Section 5.1(a) of the Transaction DocumentsDisclosure Schedule, take any of the following actions:
(i) with respect to the Company shall and shall cause the Company Subsidiaries to not:
or any of its Subsidiaries, (A) amend or propose to amend its articles of incorporation or bylaws or similar organizational constituent documents;
, (B) (1) declare, set aside issue or pay agree to issue any distributions additional shares of capital stock of any class or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock series (other than pursuant to Section 3.18); shares of Common Stock issued upon the exercise of currently outstanding options) (2C) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance enter into or agree to issue or enter into any securities convertible into or exercisable or exchangeable for shares of capital stock, (D) issue any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rightsoptions, warrants or options other rights to acquire any such Capital Stock or other securities;
shares of capital stock, (CE) issue, deliver, sell, grant, transfer pledge or otherwise dispose of or encumber any Capital Stockshares of capital stock of any class or series or partnership interests or rights of any kind to acquire any equity securities (F) declare, set aside, make or pay any dividend or other voting securities distribution in respect of its capital stock (in cash or otherwise) purchase, redeem or otherwise acquire shares of its capital stock or other equity securities, (G) split, combine or reclassify any securities convertible into or exchangeable forshares of its capital stock, or (H) enter into any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, agreement with respect to the Company or any voting of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company SubsidiariesCompany's capital stock;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(Lii) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, transfer or otherwise encumber or dispose of or encumber any of its properties or assets, other than (A) inventory sold in the ordinary course of business consistent with past practice or (B) the sale of real estate that is not used in the Business and that is described in Section 5.1(a)(ii) of the Disclosure Schedule and (C) any other properties or assets the value of which does not exceed in the aggregate One Hundred Thousand Dollars ($100,000); provided, however, that the cash proceeds from the sale of any such real estate, properties or assets described in clauses (B) and (C) shall not be included in the determination of the Closing Date Cash Balance;
(iii) except as required by Law or contractual obligations and except for borrowings permitted under any Indebtedness reflected on Exhibit 4 hereto, (1A) create, incur or assume any material long-term or short-term Indebtedness (including obligations in respect of capital leases), except loans and advances solely among the Company and its Subsidiaries, (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any person other than any of its Subsidiaries (C) make any material loans, advances or capital contributions to or investments in any person other than Subsidiaries of the Company on the date of this Agreement (except for loans or advances to employees made in the ordinary course of business consistent with past practices not exceeding Fifty Thousand Dollars ($50,000) in the aggregate and loans arising in accordance with the Company's split dollar life insurance program described in Section 5.1(a)(iii) of the Disclosure Schedule) or (D) mortgage, pledge or subject to any Encumbrance any assets of the Company or its Subsidiaries, except for Permitted Encumbrances arising in the ordinary course of business consistent with past practice; EXECUTION VERSION
(iv) (A) grant any increase in the compensation of employees, in general, of the Company or any of its Subsidiaries, other than in the ordinary course of business and consistent with past practice, (B) hire new employees, other than in the ordinary course of business and consistent with past practice, (C) enter into any employment, severance, consulting or other compensation agreement with any existing or new director, officer or employee, other than in the ordinary course of business and consistent with past practice, or (2D) with amend in any material respect or commit itself to transactions involving not amend in excess of $150,000,000 any material respect any Benefit Plan;
(v) cancel any third party Indebtedness owed to the Company;
(vi) acquire by merging or consolidating with, or by purchasing a the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets or property (other than inventory acquired in the aggregateordinary course of business consistent with past practice); or
(Mvii) make or commit to make any capital expenditure not set forth in Section 5.1(a)(vii) of the Disclosure Schedule;
(viii) (A) from and after the date hereof enter into any contract (other than purchase orders with customers and vendors entered into in the ordinary course of business consistent with past practice) with a term of more than twelve (12) months or involving the payment, or provision of goods or services, in excess of One Hundred Thousand Dollars ($100,000), (B) except in the ordinary course of business consistent with past practice and as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, amend, modify, terminate or fail to renew (to the extent such contract can be unilaterally renewed by the Company or its Subsidiaries) any contract or agreement to which the Company or any Subsidiary is a party, or waive, release or assign any material rights or claims thereunder, or (C) knowingly take any action, or omit to take any actions, or permit any omission to act within the Company's control, which will cause a breach of or default under any Material Contract;
(ix) settle or compromise any litigation or other proceeding in any manner;
(x) make or change or rescind any express or deemed election relating to Taxes of the Company or its Subsidiaries;
(xi) change an annual accounting period, adopt or change any accounting method, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax liability or EXECUTION VERSION materially decreasing any present or future Tax asset of any of the Company or its Subsidiaries, settle or compromise any liability for Tax or assessment of the Company or its Subsidiaries, or agree to an extension of a statute of limitations with respect toto the assessment or determination of Taxes of the Company or its Subsidiaries;
(xii) file or cause to be filed any amended Tax return with respect to the Company or its Subsidiaries or file or cause to be filed any claim for refund of Taxes paid by or on behalf of the Company or its Subsidiaries;
(xiii) make any change to the accounting methods, principles or otherwise practices of the Business, except as may be required by GAAP;
(xiv) adopt or amend any collective bargaining agreement or any agreement with any union, works council or similar bodies;
(xv) other than with respect to the Subject Transactions, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of the Company or any Subsidiary; or
(xvi) agree or commit commit, whether in writing or otherwise, to do, do any of the foregoing.
(b) The Company covenants and agrees that, prior to the Closing, it shall, to the extent that it has knowledge of any of the following, promptly notify Parent in writing of all events, circumstances, facts and occurrences arising subsequent to the date of this Agreement which could reasonably be expected to result in any material breach of a representation or warranty or covenant of the Company in this Agreement.
(c) From the date of this Agreement to the Effective Time, the Company and its Subsidiaries shall make capital expenditures in the ordinary course of business consistent with past practice. Notwithstanding anything to the contrary set forth herein, the parties hereto acknowledge that the capital expenditures set forth in Section 5.1(a)(vii) of the Disclosure Schedule may not accurately reflect the timing of capital expenditures actually made.
Appears in 1 contract
Conduct of Business Prior to Closing. From the Effective Date until the Closing Date, except as other provided in this Agreement or consented to in writing by Buyer (awhich consent shall not be unreasonably withheld or delayed), the Company and the Member shall, and the Selling Parties shall cause the Company and the Member to: (i) Except operate, conduct and carry on the Business and their operations only in the ordinary course and consistent with past practice and the Management Services Agreement; (ii) maintain and keep its properties in states of good repair and condition as otherwise at present, except for depreciation due to ordinary wear and tear and damage due to casualty; (iii) maintain in full force and effect insurance comparable in amount and in scope of coverage to that now maintained by them; (iv) perform in all material respects all of its obligations under material Contracts relating to or affecting its assets, properties, and the Business; (v) use their commercially reasonable efforts to maintain and preserve its business organization intact, to retain its key employees, and to maintain its relationship with its material suppliers and customers; and (vi) fully comply with and perform in all material respects all obligations and duties imposed on it by all federal and state Laws and all rules, regulations, and orders imposed by Governmental Authorities including maintaining in full force and effect all Permits held by the Company or under which it operates or conducts the Business. Notwithstanding the foregoing, except as expressly required by this Agreement, the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, Management Services Agreement or with the prior written consent of the Investor, between the date of this Agreement and the ClosingBuyer, the Company shalland the Member shall not, and the Company Selling Parties shall cause each the Company Subsidiary and the Member not to:
(i) use commercially reasonable efforts to conduct its business only declare or pay any dividends on or make other distributions in respect of any equity interests of the ordinary course of business; and
Company or the Member, (ii) use commercially reasonable efforts to (A) preserve the present business operationsissue, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customersrepurchase, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) redeem or otherwise contemplated by acquire or modify the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles terms of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of interests in its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock capital or any of its other securities; , including the Membership Interests or (3iii) purchase, redeem grant or otherwise acquire issue any Capital Stock or any of its other securities or any rightsoptions, warrants or options rights to acquire subscribe for any such Capital Stock interest in the Company’s or other securitiesthe Member’s capital or securities convertible into same or commit to do any of the foregoing;
(Cb) issueform any direct or indirect subsidiary of the Company or the Member or windup, deliverliquidate, sell, grant, pledge dissolve or otherwise dispose of terminate the Company or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this AgreementMember;
(Dc) commence a (i) make any voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceedingdeclaration of, or consent to the entry of an order initiate any proceedings in, bankruptcy or insolvency or filing any petition for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or the Member, (ii) make any assignment for the benefit of the Company Subsidiaries, or any other liquidation or dissolution creditors on behalf of the Company or the Member or (iii) apply for the appointment of a custodian, receiver or trustee for the Company or the Member;
(d) amend, modify, waive or rescind any of the Organizational Documents of the Company Subsidiariesor the Member;
(Ee) terminatemake any capital expenditure(s) or enter into any Contract(s) therefor that is in excess of $10,000 individually or $[***] in the aggregate;
(f) enter into any Contract that (i) would have been required to be set forth on Section 3.14(a) of the Disclosure Schedule if in effect on the date hereof, (ii) is outside the ordinary course of business consistent with past practice or (iii) cannot be assigned or transferred to Buyer;
(g) enter intointo or modify any Contract, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement transaction with any Affiliate, Member, director, manager, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in of the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)Company;
(Fh) terminate, enter intorescind, establishamend or otherwise modify, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver under, any Material Contract;
(i) enter into any Contract for the purchase of any real property or consent under the sale or lease (including any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course extension thereof) of business), plan or arrangementany Leased Real Property, or any trust agreement amendment thereto;
(j) acquire by merging or similar arrangementconsolidating the Company or the Member with, or purchase any of the equity interests or material assets of, directly or indirectly, any other Person or any business or division thereof;
(k) related theretocancel any Indebtedness owed to or claims held by the Company or the Member or waive any other rights held by the Company or the Member;
(l) create, in respect of any directorincur, officerassume, employee modify or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based awardIndebtedness or enter into, take as lessee, any action to accelerate the vestingcapital lease;
(m) institute, exercisability abandon, settle or payment (compromise or fund or secure the payment) of make any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, material decision with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money pending or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, threatened claim or proceeding Action by, against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of involving the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its AffiliatesMember;
(Kn) change establish or increase any material accounting method profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit with respect to Taxes, make, change employees or revoke consultants of the Company (or any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating other Person who provides services to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material TaxesMember);
(Lo) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of make any of its properties or assetsincrease or, except (1) with respect to an employee having an annual base salary of less than $25,000 and in the ordinary course of business consistent with past practicepractices, or (2) with respect to transactions involving not in excess of $150,000,000 decrease in the aggregatecompensation (including base salary, wages and bonus opportunities) of the directors, managers, officers, employees or consultants of the Company or the Member (or any other Person who provides services to the Company; or
(Mp) enter into incur any contract with respect toadditional Indebtedness, or otherwise agree guarantee any Indebtedness or commit to doobligation of any party other than Buyer, any except as such Indebtedness may be incurred in the ordinary course of business and/or the foregoingprincipal amount of such indebtedness does not exceed $[***].
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Harvest Health & Recreation Inc.)
Conduct of Business Prior to Closing. Prior to the Effective Time, unless Parent has agreed otherwise in writing, the Company:
(a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary of its Subsidiaries to:
(i) use commercially reasonable efforts to , conduct its operations and business only in the according to their usual, regular and ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships consistent with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.past practice;
(b) Except as set forth in Section 3.1(b) of the Disclosure Scheduleshall use commercially reasonable efforts, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company each of its Subsidiaries to not:use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(Ac) shall not, and shall cause its Subsidiaries not to, amend its their respective articles of incorporation or bylaws by-laws or similar organizational documentscomparable governing instruments;
(Bd) shall promptly notify Parent of (1i) declareany Material Adverse Change with respect to the Company, set aside (ii) any material litigation or pay any distributions material governmental complaints, investigations or dividends onhearings (or communications indicating that the same may be contemplated), or make any other distributions (whether in cash, securities or other propertyiii) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance breach of any other securities in respect of, in lieu of representation or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securitieswarranty contained herein;
(Ce) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options shall promptly deliver to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise Parent correct and complete copies of any compensatory stock options outstanding on report, statement or schedule filed with the SEC subsequent to the date of this Agreement;
(Df) commence a voluntary procedure for reorganizationshall not, arrangementand shall not permit any of its Subsidiaries to, adjustmentauthorize, relief propose or composition of indebtedness announce an intention to authorize or bankruptcy, receivership or a similar proceedingpropose, or consent to the entry of enter into an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, agreement with respect to to, any merger, consolidation or business combination (other than the Company Merger), release or relinquish any of the Company Subsidiariesmaterial contract rights, or any other liquidation acquisition or dissolution disposition of the Company Assets or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (securities other than with respect to group insurance and welfare employee benefits, in the ordinary course acquisition or disposition of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) Assets in the ordinary course of business consistent with past practice;
(g) shall not, and shall not permit any of its Subsidiaries to, (i) grant, confer or award any options, warrants, conversion rights or other rights or Equity Securities not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or its Subsidiaries or (ii) accelerate, amend or change the period of exercisability of options granted under any employee stock plan or authorize cash payments in exchange for any options granted under any of such plans;
(h) shall not, and shall not permit any of its Subsidiaries to, amend the terms of the Benefit Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; oradopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements;
(Mi) shall not, and shall not permit any of its Subsidiaries to, (i) increase or agree to increase the compensation payable or to become payable to its officers or, other than increases in accordance with past practice which are not material, to its employees, (ii) grant any severance or termination pay to any employee or (iii) enter into any contract with respect collective bargaining agreement;
(j) shall not, and shall not permit any of its Subsidiaries to, (i) incur, create, assume or otherwise agree become liable for borrowed money or commit assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (ii) make any loans or advances to doany other person, any except, in the case of clause (i), for borrowings under existing credit facilities (excluding arrangements presently in place under vendor payment agreements) in the foregoing.ordinary course of business which do not exceed in the aggregate the principal amount calculated in accordance with Schedule 6.1
Appears in 1 contract
Samples: Merger Agreement (Angeion Corp/Mn)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required provided or permitted herein, set forth on Schedule 4.1 or as consented to in writing by Purchaser (which consent shall not be unreasonably withheld), during the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between period commencing on the date of this Agreement and ending at the ClosingClosing or such earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing Period”), the Company shall, and the Company shall cause each Company Subsidiary the Subsidiaries to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) , use commercially reasonable efforts to (Aa) preserve act and carry on their respective businesses in the present ordinary course of business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary consistent with past practice and (Bb) maintain and preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or all material respects the Company’s obligations under applicable and the Subsidiaries’ business organization, assets and properties (reasonable wear and tear excluded). Without limiting the generality of the foregoing, except as expressly provided or permitted herein, as required by Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) on Schedule 4.1, during the Pre-Closing Period, the Company shall not, and shall not permit any Subsidiary to, directly or indirectly, do any of the Disclosure Schedule, with following without the prior written consent of the Investor Purchaser (which consent shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:withheld):
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2a) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its Capital Stock Stock;
(b) authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
Equity Interests (C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any the issuance of shares of Common Stock on upon the exercise of any compensatory stock options Options that are outstanding on the date of this Agreement);
(Dc) commence a voluntary procedure for reorganization, arrangement, adjustment, relief amend or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent make any change to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief Organizational Documents or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any organizational documents of the Company Subsidiaries, or any other liquidation change the authorized Capital Stock or dissolution Equity Interests of the Company or any of the Company Subsidiaries;
(Ed) terminate, enter into, amend, modify (including by way of interpretationi) incur any Indebtedness (or obtain any new or additional commitment from any Person to provide any such Indebtedness), renew except for Indebtedness that will constitute Closing Indebtedness to be paid in full at Closing pursuant to Section 1.13(b)(v), (ii) issue, sell or grant amend any waiver debt securities of the Company or consent under the Subsidiaries, (iii) guarantee any employmentIndebtedness of another Person, offer(iv) make any loans, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant advances (other than, with respect than routine advances not in excess of $100,000 in the aggregate to non-executive officers or consultants, employees of the Company and the Subsidiaries in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangementcapital contributions to, or amend investment in, any other Person, other than the Company or terminate the Subsidiaries; or (v) create any existing employee benefit plan Lien on any material assets or arrangement properties of the Company or adopt any new employee benefit plan or arrangement (its Subsidiaries other than, with respect to non-executive officers and non-directors in the ordinary course of business)than a Permitted Lien;
(Fe) terminate(i) make any material change in its borrowing arrangements or (ii) knowingly waive, enter intorelease, establish, adopt, amend, modify (including by way of interpretation), make new grants write off or awards under, renew assign any material rights or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action)claims, other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(If) implement change accounting policies or adopt any change in its accounting principlesprocedures, practices or methodologies, other than except as may be required by GAAP applicable Laws or applicable accounting requirements of a Governmental Entityby GAAP;
(Jg) settle change any action, suit, claim cash management policies or proceeding against itprocedures of any of its restaurants, except for an action, suit, claim or proceeding that is settled in the ordinary course of business consistent with past practice;
(h) amend or terminate any Employee Benefit Plan (including any underlying agreements), except as required by applicable Law or to maintain the qualified status of such Employee Benefit Plan;
(i) except to the extent required by the existing terms of written bonus and other incentive plans or contracts entered into prior to the date of this Agreement or in an amount that is consistent with the Company’s annual budget (all of which have been provided to Purchaser prior to the date hereof), (i) increase the compensation or for consideration not in excess of $500,000 individually benefits payable or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or to become payable to any of its Affiliates;
directors, officers, employees or consultants (K) change any material accounting method with respect to Taxes, make, change other than increases for employees or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension consultants (who are not officers or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1directors) in the ordinary course of business consistent with past practice), (ii) approve or pay any bonus or incentive compensation or accelerate vesting in rights under any compensatory arrangement, (iii) grant any severance, termination or similar pay to, or enter into or modify any change-in-control or severance agreement with, any of its directors, officers or employees (2other than newly hired employees pursuant to policies as in effect on the date of this Agreement) or (iv) terminate the employment of any Key Employees without cause;
(j) make any acquisition other than as reserved against in the Company’s annual budget as provided to Purchaser prior to the date hereof;
(k) enter into any Contract that, if entered into prior to the date hereof, would constitute a Company Specified Agreements;
(l) sell, lease, license, pledge or otherwise dispose of or encumber any material properties or material assets of the Company or any Subsidiary, other than the Mesquite Transaction;
(m) renew or not renew, approve or not approve a proposed transfer of or terminate a Company Franchise;
(n) enter into any Contract to acquire any real property;
(o) enter into any collective bargaining agreement or organizing rights agreement or similar Contract or recognize any labor organization as the representative of its employees for purposes of bargaining over terms and conditions of employment;
(p) make, revoke or change any Tax election or method of Tax accounting, enter into any closing agreement, waive or extend any statute of limitations with respect to transactions involving Taxes or with respect to any claim or assessment relating to Taxes, settle or compromise any liability with respect to Taxes, consent to or surrender any claim or assessment relating to Taxes, file or cause to be filed any amended Tax Return with respect to the Company or any of its Subsidiaries or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as required by applicable Law;
(q) enter into any Contract that, if entered into prior to the date hereof, would be required to be set forth as a Material Contract pursuant to Sections 2.9(a)(i) through 2.9(a)(ix) and 2.9(a)(xi) through 2.9(a)(xv), or except as specifically permitted in this Agreement, materially amend or terminate, or waive any material right under, any Material Contract;
(r) settle or compromise any litigation or other disputes (whether or not commenced prior to the date of this Agreement) other than settlements or compromises for litigation or other disputes where the amount paid in excess of settlement or compromise does not exceed $150,000,000 1,000,000 individually or $2,000,000 in the aggregate, for all such litigation or other disputes;
(s) dividend or distribute any cash or cash equivalents after 12:01 a.m. Central Time on the Closing Date; or
(Mt) enter into or extend any contract with respect toagreement, commitment or otherwise agree or commit undertaking to do, do any of the activities prohibited by the foregoing provisions. Notwithstanding the foregoing, nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and the Subsidiaries’ operations and shall be permitted to pay down or otherwise extinguish existing Indebtedness.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the InvestorThe Company agrees that, between the date of this Agreement hereof and the ClosingEffective Time, it shall use its reasonable best efforts to operate and to cause its Subsidiaries to operate their respective businesses in the ordinary course of business, consistent with past practices, except as described in Schedule 6.1 or as otherwise expressly contemplated by this Agreement. In furtherance of the foregoing, without the consent of Parent or MergerCo, the Company shall, will not and the Company shall will cause each Company Subsidiary its Subsidiaries not to:
(i) use commercially reasonable efforts to conduct its business only change or introduce any method of management or operations except in the ordinary course of business; andbusiness and consistent with prior practices;
(ii) use commercially reasonable efforts authorize for issuance, issue, transfer or sell or agree or commit to issue, transfer or sell (Awhether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) preserve the present business operations, organization (including officers and employees) and goodwill any stock of any class or any other securities or equity equivalents of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or Subsidiaries (3including, without limitation, stock appreciation rights) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any the issuance of Common shares of Company Stock on upon the exercise of any compensatory stock options Options or warrants outstanding on the date of this AgreementAgreement in accordance with their present terms);
(Diii) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent make any change to the entry Company’s Certificate of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief Incorporation or composition By-laws or the organizational documents of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company its Subsidiaries, or any other liquidation change the authorized capital stock or dissolution equity interests of the Company or any of the Company SubsidiariesSubsidiary;
(Eiv) terminate(a) prepay any loans (if any) from its stockholders, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus directors or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, Person affiliated with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the precedingforegoing, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(Hb) incur or assume any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other personIndebtedness, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, (c) modify, amend or terminate any of its Material Contracts or Company Plans except as specifically provided in this Agreement or (2d) waive, release or assign any material rights or claims, or cancel or compromise any debt;
(v) materially change accounting policies or procedures, except as required by law or by GAAP;
(vi) materially increase the rates of any compensation or benefits payable or to become payable to any employee of the Company or any Subsidiary, other than normal merit increases consistent with respect to transactions involving not past practice, or enter into any written employment, deferred compensation, severance, consulting, non-competition or similar agreement (or materially amend any such agreement);
(vii) increase, accelerate or otherwise modify the benefits, rights or accruals under the plans set forth on Schedule 7.8(d), other than normal accruals in excess of $150,000,000 accordance with the terms thereof;
(viii) make any material acquisition or capital expenditure other than (i) the acquisitions described in Schedule 6.1 or (ii) as reserved against in the aggregateCompany’s annual budget;
(ix) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries;
(x) subject to any Encumbrance or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible) of the Company or any of its Subsidiaries;
(xi) make or revoke any election concerning Taxes or Tax Returns, change its Tax reporting principles, methods or policies, settle or compromise any Tax claim, action, suit, litigation proceeding, arbitration, investigation, audit or controversy, or surrender any right to claim a refund of Taxes;
(xii) enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company or any Subsidiary to compete with or conduct any business or line of business in any geographic area;
(xiii) enter into any executory agreement, commitment or undertaking to do any of the activities prohibited by the foregoing provisions;
(xiv) fail to collect or delay the collection of any accounts or notes receivable or fail to pay any accounts payable when due, except, in each case, in the ordinary course of business consistent with past practice; or
(Mxv) enter into any contract manage the Company’s working capital other than in the ordinary course of business consistent with respect topast practice. Notwithstanding the foregoing, prior to the Closing the Company shall be permitted to pay down existing indebtednesses.
(b) Except as otherwise expressly provided in this Agreement or otherwise agree with the prior written consent of Parent or commit to doMergerCo, any the Company will:
(i) maintain (A) all of the foregoingassets and properties of the Company and its Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company and its Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(ii) (A) maintain the books, accounts and records of the Company and its Subsidiaries in the ordinary course of business, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, (C) continue to make all scheduled capital expenditures materially in accordance with the budget previously provided to Parent and set forth on Schedule 6.1, and (D) comply with all contractual and other obligations applicable to the operation of the Company and its Subsidiaries;
(iii) deliver to Parent a copy of a monthly balance sheet and income statement of the Company and its Subsidiaries for each month from the date hereof to the Closing Date, not later thirty (30) days following the end of month reflected in each such statement;
(iv) comply in all material respects with all applicable laws; and
(v) not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable LawThe Company agrees that, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between after the date of this Agreement and before the Closing, except as otherwise permitted, required or contemplated by this Agreement or expressly permitted by Parent in writing, the Company shall, and business of the Company shall cause each be conducted in the ordinary course consistent with prior practices and in a prudent, businesslike fashion. Without limiting in any way the generality of the foregoing and except as so permitted, required or contemplated, the Company Subsidiary toshall not:
(i) use commercially reasonable efforts merge with or into or consolidate with any other corporation;
(ii) amend its Articles of Incorporation or Bylaws;
(iii) change its benefit structures or salary rates (other than normal merit increases or promotions), enter into or materially modify any employment contracts or severance arrangements, or enter into collective bargaining or similar agreements;
(iv) make any change in its authorized or outstanding capital stock or otherwise in its capital structure;
(v) incur any indebtedness for borrowed money;
(vi) issue or deliver any stock, bonds or other securities or debt instruments, or any options, warrants or other rights calling for the issuance or delivery thereof;
(vii) declare or make, or agree to conduct declare or make, any payment or dividends or distributions or purchase or redeem, or agree to purchase or redeem, any of its capital stock or other securities;
(viii) enter into any transactions other than in the ordinary course of business only (including make any capital expenditure in an amount greater than $25,000 in the aggregate);
(ix) terminate or amend any material contract, agreement, license or other instrument to which the Company is a party or by which any of the Company or any of its assets are bound, except agreements which by their terms are terminable in the ordinary course of business; andor
(iix) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and enter into any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit contract or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, commitment in the ordinary course of business) business which involves more than $25,000 or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in has a duration longer than one year without prior consultation with and consent of Parent which consent shall not be unreasonably withheld. Without limiting the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any generality of the precedingforegoing, communicate any intention the Company shall continue to take such action), other than with respect pay accounts payable and to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled collect accounts receivable in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate accordance with past practice, to maintain and that would not impose any material restriction on the business of preserve customer relations and to maintain insurance; and the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, shall not change or revoke any Tax election, prepare any Tax Returns inconsistent permit to be changed in any material respect with past practice, file any amended material Tax Return, consent the accounting or valuation practices applicable to any extension its assets or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingbusinesses.
Appears in 1 contract
Samples: Merger Agreement (Remec Inc)
Conduct of Business Prior to Closing. Until the Closing Date, the Seller shall, CCCC shall, and Mah shall cause the Seller and CCCC to:
(a) Except Conduct Business in Ordinary Course — except as otherwise expressly required contemplated or permitted by this Agreement, conduct the Transaction Documents or applicable LawBusiness in the ordinary and normal course and shall not, by the performance of any Material Contract that was Previously Disclosed, or with without the prior written consent of the InvestorBuyer, between enter into any transaction which, if entered into before the date of this Agreement, would cause any representations or warranties of the Seller contained in this Agreement to be incorrect or constitute a breach of any covenant or agreement of the Seller contained in this Agreement. The Seller shall use its reasonable commercial efforts to preserve the Business and the Closing, relationship between the Company shall, Seller and the Company shall cause each Company Subsidiary to:customers of the Business.
(ib) use commercially reasonable efforts Continue Insurance —continue in force all insurance maintained by it in respect of the Business.
(c) Perform Obligations —comply with all applicable laws, regulations, by-laws and other governmental requirements of each jurisdiction in which the Business is carried on.
(d) Material Changes — refrain from taking any action which would result in any Material adverse change, which shall be deemed to conduct its business only include the circumstances specified in Subsection 4.1 (z), in or to the Purchased Assets or sell, transfer or dispose of any of the Purchased Assets, other than in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(be) Except as set forth in Section 3.1(b) Liens — not suffer or permit any mortgages, pledges, hypothecs, security interests, deemed trusts, liens, charges, rights or claims of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company SubsidiariesPersons, or any other liquidation encumbrances whatsoever, to attach to or dissolution of affect the Company or any of the Company Subsidiaries;Purchased Assets.
(Ef) terminateWage Increases, enter into, amend, modify (including by way of interpretation), renew Hiring and Firing — not make or commit to make any wage increases or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect bonuses to any of the precedingnon-union Employees of the Business, communicate nor employ any intention to take such action), other than with respect to new Employees in the salary Business without the Buyer’s consent nor terminate the employment of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business key Employees of the Company or Business, without the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingBuyer’s consent.
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly provided or permitted herein, as set forth on Schedule 4.1, as required by contract in effect on the date hereof or by law, or as consented to in writing by the MPT Parties, during the period commencing on the date of this Agreement and ending at the Closing Date or the earlier termination of this Agreement, each of the Xxxxxx Health Parties shall (a) Except act and carry on its business in all material respects in the Ordinary Course of Business and in compliance in all material respects with all applicable laws and regulations and (b) use commercially reasonable efforts to maintain and preserve its business organization, assets and properties, to use commercially reasonable efforts to keep available the services of each of their current officers and employees and to preserve their present relationships with patients, suppliers and other Persons with which any of the Xxxxxx Health Parties has significant business relations. Without limiting the generality of the foregoing, except as otherwise expressly provided or permitted herein or as set forth on Schedule 4.1, or as required by contract in effect on the Transaction Documents date hereof or applicable Lawby law, by from and after the performance date hereof until the Closing Date or the earlier termination of this Agreement, none of the Xxxxxx Health Parties shall, directly or indirectly, do any Material Contract that was Previously Disclosed, or with of the following without the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor MPT Parties (which consent shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:):
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2a) split, combine or reclassify any of its Capital Stock capital stock or equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock shares of its capital stock, equity interests, or any of its other securities; ;
(b) authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock or equity interests of any class or any other securities or equity equivalents (other than the issuance of Common Shares upon the exercise of Options that are outstanding on the date of this Agreement);
(c) make any change to the Certificate of Incorporation or By-laws, or the organizational or governing documents of the EHI Subsidiaries, terminate or alter its legal existence and or business organization;
(d) (i) incur any Indebtedness, except for borrowings under Xxxxxx Health’s existing credit facilities, or guarantee any Indebtedness of another Person, (ii) issue or sell any debt securities of any of the Xxxxxx Health Parties, guarantee any debt securities of another Person, or enter into any “keep well” or other agreement to maintain any financial statement condition of another Person, or (3iii) purchasemake any loans, redeem advances (other than advances to employees of any of the Xxxxxx Health Parties in the Ordinary Course of Business) or capital contributions to, or investment in, any other Person, other than by the Xxxxxx Health Parties in any of Xxxxxx Health’s direct or indirect wholly-owned Subsidiaries;
(e) fail to pay or satisfy any Indebtedness when the same becomes due and payable;
(f) knowingly waive, release, cancel, or assign any material rights or claims, other than in the Ordinary Course of Business (including any material write-off or other material compromise of any accounts receivable or other receivable of Xxxxxx Health or any of the EHI Subsidiaries); provided, however, that, for the avoidance of doubt, Xxxxxx Health shall not be prohibited from paying any Indebtedness or any expenses in connection with the Merger and related transactions);
(g) materially change accounting policies or procedures or Tax elections, except as required by GAAP or applicable law;
(i) materially increase the rates of direct compensation or bonus compensation payable or to become payable to any officer, management level employee, agent or consultant of Xxxxxx Health or any of the EHI Subsidiaries, except (A) in the Ordinary Course of Business, (B) in accordance with the existing terms of contracts entered into prior to the date of this Agreement, (C) for the acceleration of unvested Options and/or restricted stock as provided for under the applicable incentive agreements, or (D) for bonuses payable to senior management of Xxxxxx Health in connection with the transactions contemplated by this Agreement and the Merger Agreement which are approved by the Xxxxxx Health Board, or (ii) adopt any new Benefit Plan or materially amend or modify any existing Benefit Plan;
(i) (i) merge with, enter into a consolidation with or otherwise acquire an interest of the outstanding equity interests in any Capital Stock Person or acquire a substantial portion of the assets or business of any Person (or any division or line of its other securities business thereof), or (ii) otherwise acquire (including, through leases, subleases and licenses of real, personal or intangible property) any rightsmaterial assets, warrants or options to acquire any such Capital Stock or other securitiesexcept, in the case of this clause (ii), in the Ordinary Course of Business;
(Cj) issue, deliver, sell, grantlease, license, pledge or otherwise dispose of or encumber (i) any Capital Stock, portion of the Real Property or (ii) any other voting securities material properties or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance assets of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company Xxxxxx Health or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), EHI Subsidiaries other than with respect to the salary items in clause (ii) above in the Ordinary Course of Business or in connection with the disposition of obsolete properties or assets;
(k) fail to maintain any non-executive officer employee of the Insurance Policies in full force and effect;
(andl) amend or terminate (i) any Material Contract to which Xxxxxx Health or any of the EHI Subsidiaries is party, or (ii) any other Contract to which Xxxxxx Health or any of the EHI Subsidiaries is a party, except with respect to such employeeclauses (i) and (ii) for terminations or amendments provided by the terms thereof or with respect to clause (ii) only, only except in the ordinary course Ordinary Course of businessBusiness;
(m) settle or compromise any Litigation or other disputes (whether or not commenced prior to the date of this Agreement) other than settlements or compromises for Litigation or other disputes where the amount paid in settlement or compromise does not exceed $100,000 individually or $500,000 in the aggregate for all such Litigation or other disputes;
(n) terminate or materially and adversely modify its relationships with any material suppliers, trade creditors or trade debtors, except in the Ordinary Course of Business;
(o) make any capital expenditure or commitment for the acquisition of assets or properties in excess of One Million One Hundred and Ninety Three Dollars ($1,193,000);
(Gp) make terminate, amend or modify in any other change material respect any of the Tenant Leases, Collateral Leases or the Ground Lease; or
(q) enter into any executory agreement, commitment or undertaking, whether in employment terms for writing or otherwise, to do any of the activities prohibited by the foregoing provision, or permit any of its equity holders, directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assumemembers, guarantee or endorsemanagers, partners, or otherwise become responsible for Person or group of Persons possessing and/or exercising similar authority to authorize the obligations taking of, any other person, except in action prohibited by the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingforegoing provisions.
Appears in 1 contract
Samples: Real Property Asset Purchase Agreement (Medical Properties Trust Inc)
Conduct of Business Prior to Closing. From the Effective Date until the Closing Date, except as other provided in this Agreement or consented to in writing by ParentCo or Acquiror (awhich consent shall not be unreasonably withheld or delayed), each Target Company shall, and the Sellers and the Sellers’ Representative shall cause the Target Companies, individually and collectively to: (i) Except operate, conduct and carry on the business of the Target Companies only in the ordinary course and consistent with past practice and to preserve the assets of the Business; (ii) maintain and keep its properties in states of good repair and condition as otherwise at present, except for depreciation due to ordinary wear and tear and damage due to casualty; (iii) maintain in full force and effect insurance comparable in amount and in scope of coverage to that now maintained by it; (iv) perform in all material respects all of its obligations under material contracts, leases, and instruments relating to or affecting its assets, properties, and business; (v) use its commercially reasonable efforts to maintain and preserve its business organization intact, to retain its key employees, and to maintain its relationship with its material suppliers and customers; and (vi) fully comply with and perform in all material respects all obligations and duties imposed on it by all federal and state Laws and all rules, regulations, and orders imposed by Governmental Authorities. Notwithstanding the foregoing, except as expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, this Agreement or with the prior written consent of the InvestorParentCo or Acquiror, between the date of this Agreement and the Closing, the each Target Company shallshall not, and the Company Sellers shall cause each Target Company Subsidiary not to:
(ia) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operationsrepurchase, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) redeem or otherwise contemplated by acquire or modify the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles terms of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock limited liability company interests or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(Cb) issue, deliver, sell, grant, pledge form any direct or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise indirect subsidiary of any compensatory stock options outstanding on of the date of this AgreementTarget Companies or windup, liquidate, dissolve or terminate any Target Company;
(Dc) commence a (i) make any voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceedingdeclaration of, or consent to the entry of an order initiate any proceedings in, bankruptcy or insolvency or filing any petition for relief in an involuntary procedure with respect to any of the Target Companies, (ii) make any assignment for reorganization, arrangement, adjustment, relief the benefit of creditors on behalf of any of the Target Company or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to (iii) apply for the appointment of a receivercustodian, liquidatorreceiver or trustee for any of any Target Companies;
(d) amend, custodian modify, waive or trustee, in each case, with respect to the Company or rescind any of the Company Subsidiaries, or any other liquidation or dissolution Organizational Documents of the Company or any of the Company SubsidiariesTarget Companies;
(Ee) terminatemake any capital expenditure(s) or enter into any Contract(s) therefor that is in excess of $10,000 individually or $50,000 in the aggregate;
(f) enter into any Contract that (i) would have been required to be set forth on Section 3.14 of the Disclosure Schedule if in effect on the date hereof, (ii) is outside the ordinary course of business consistent with past practice or (iii) cannot be assigned or transferred to Acquiror;
(g) enter intointo or modify any Contract, amend, modify (including by way of interpretation), renew Lease or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement transaction with any Affiliate, Member, director, manager, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in of any of the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)Target Companies;
(Fh) terminate, enter intorescind, establishamend or otherwise modify, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver under, any Material Contract or consent under Lease;
(i) enter into any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance Contract for the purchase of any real property or other employee benefit, incentive the sale or welfare contract lease (other than with respect to group insurance and welfare employee benefits, in the ordinary course including any extension thereof) of business), plan or arrangementany Leased Real Property, or any trust agreement amendment thereto;
(j) acquire by merging or similar arrangementconsolidating any of the Target Companies with, or purchase any of the equity interests or material assets of, directly or indirectly, any other Person or any business or division thereof;
(k) related theretocancel any Indebtedness owed to or claims held by any Target Company or waive any other rights held by any of the Target Companies;
(l) create, in respect of any directorincur, officerassume, employee modify or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based awardIndebtedness or enter into, take as lessee, any action to accelerate the vestingCapital Lease;
(m) institute, exercisability abandon, settle or payment (compromise or fund or secure the payment) of make any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, material decision with respect to any pending or threatened claim or Action by, against or involving any of the precedingTarget Companies, communicate including any intention to take such action)governmental, administrative or regulatory investigation, audit or inquiry;
(n) establish or increase any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other than employee benefit with respect to the salary employees or consultants of any non-executive officer employee of the Target Companies (andor any other Person who provides services to any of the Target Companies); or
(o) make any increase or, except with respect to such employee, only in the ordinary course an employee having an annual base salary of business);
(G) make any other change in employment terms for any of its directors, officers, employees less than $25,000 and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practicepractices, or (2) with respect to transactions involving not in excess of $150,000,000 decrease in the aggregate; or
compensation (Mincluding base salary, wages and bonus opportunities) enter into any contract with respect toof the directors, managers, officers, employees or otherwise agree or commit to do, consultants of any of the foregoingTarget Companies (or any other Person who provides services to any of the Target Companies.
Appears in 1 contract
Samples: Membership Interest Contribution Agreement (Harvest Health & Recreation Inc.)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and Prior to the Closing, the Company shall, and the Company Seller shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business and affairs and the business and affairs of the Business only in the ordinary course and consistent with prior practice and shall maintain, keep and preserve the assets and properties of the Company and the Business in good condition and repair and maintain insurance thereon in accordance with past practices, and, except as otherwise agreed by Purchaser, Seller will cause Company to use its best efforts to preserve the Business intact. Without limiting the generality of the foregoing, prior to the Closing, Seller will cause Company to refrain from the following without Purchaser's prior written approval: (i) the taking of any action or causing to be done anything that would, in accordance with Company's policies as in effect as of the date hereof, require approval by its shareholders; (ii) the issuance, sale or agreement to issue or sell any capital stock, options, warrants, rights or calls to purchase such stock; (iii) the changing of any salary, benefits or other direct or indirect remuneration or compensation paid or payable to any officer, employee, distributor or agent of Company other than in the ordinary course of business and consistent with past practices; or (iv) the declaration or payment of any dividend, whether in cash, stock or in kind, or other distribution of any kind on or in respect of any shares of capital stock of the Company, or the making of any payment to any Person (including Seller or any affiliate of Seller) in the nature of a transaction fee or management fee.
(b) Seller shall give Purchaser prompt written notice of any change in any of the information contained in the representations and warranties made in Article 3.0 or elsewhere in this Agreement or the schedules or exhibits referred to herein that occurs prior to the Closing.
(c) Seller shall cause the Company to refrain from the following without Purchaser's prior written approval, which approval shall not be unreasonably withheld: (i) the sale of any business units or product lines; (ii) the cancellation of contracts, agreements,commitments or other understandings or arrangements other than in the ordinary course of business to which Company is a party, including, without limitation, purchase orders for items of inventory; (iii) the commitment for capital expenditures or improvements; (iv) the discontinuance of particular Products other than in the ordinary course of business; and
or (iiv) use commercially reasonable efforts significant changes to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided's purchasing, however, that nothing in this clause (ii) shall limit pricing or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entityselling policies.
(bd) If prior to the Closing either Purchaser or Seller shall become aware of any breach of a representation, warranty or covenant by another Party hereto, then such Party who becomes aware shall immediately notify the other Parties hereto of such breach and breaching Party shall be afforded a reasonable period of time, not to exceed five (5) days ("Cure Period"), in which to cure such breach or take such action as may be appropriate to correct the circumstances giving rise to such breach. If prior to the Closing either Purchaser or a Seller shall become aware of its own breach of a representation, warranty or covenant, then such Party shall immediately notify the other Parties hereto of such breach and such breaching Party shall have a reasonable period of time, not to exceed the Cure Period, in which to cure such breach or take such action as may be appropriate to correct the circumstances giving rise to such breach. If any such breach described above in this Section 5(d) is cured within the earlier of the expiration of the applicable Cure Period or the Closing Date, then the affected representation, warranty or covenant shall be deemed not violated.
(e) Except as set forth in Section 3.1(b) of the Disclosure Scheduleotherwise agreed by Purchaser, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Seller and Company shall and shall will use their best efforts to cause the employees of Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or continue to make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant available their employment services to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock Company on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;.
(Kf) change After the date hereof, Seller will cause Company to consult with Purchaser regarding any material accounting method discussions with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingunion.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oak Brook Capital Iii Inc)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between From the date of this Agreement and until the ClosingClosing Date, the Company and its subsidiaries shall, and the Company Initial Sellers shall cause each the Company Subsidiary and its subsidiaries to:
(i) , operate and maintain the Business in the ordinary course of business consistent with past practice and use commercially reasonable efforts to conduct preserve intact the business organization, operations, goodwill, reputation and relationships with third parties of the Company and its subsidiaries and to keep available the services of the Company’s and its subsidiaries’ present officers and employees. Without limiting the generality of the foregoing, from the date of this Agreement to the Closing Date, the Company and its subsidiaries shall (except as otherwise consented to in writing by Xxxxx, which consent shall not be unreasonably withheld, conditioned, or delayed):
(a) not amend the certificate of formation of the Company or the Operating Agreement;
(b) not sell, assign, transfer, license, sublicense, or otherwise dispose of, any material asset other than in the ordinary course of business;
(c) not permit the imposition of any Encumbrance (other than Permitted Encumbrances) upon any of the material assets of the Company or any of its subsidiaries;
(d) not materially increase the compensation payable to any of its officers, directors or employees whose annual cash compensation exceeds $100,000, except for customary annual increases in the ordinary course of business only consistent with past practice;
(e) not make any material change in any method of accounting or accounting practice, except as required by GAAP;
(f) not make, change or rescind any material Tax election, amend any income or other material Tax Return, settle or otherwise compromise any Proceeding relating to Taxes, or request any ruling or similar guidance with respect to Taxes;
(g) not purchase, lease or otherwise acquire any property or assets for an amount in excess of $100,000 individually (in the case of a lease, per annum) or $250,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for the purchase of inventory or supplies or other assets in the ordinary course of business consistent with past practice;
(h) not acquire by merger, consolidation, purchase or any other manner any business or Person or division thereof;
(i) not materially modify or amend or waive any material rights under any Material Contract or accelerate or terminate any such Material Contract except in the event of the a breach thereof by a counterparty thereto in accordance with the terms of such Material Contract;
(j) continue in full force and effect without material modification all insurance policies, except as required by applicable Law;
(k) maintain its books and records in accordance with past practice;
(l) not enter into a new line of business or unreasonably abandon or discontinue an existing line of business;
(m) not adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file any petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against the Company or any of its subsidiaries under any similar Law;
(n) not adopt, materially modify, or terminate any Employee Benefit Plan, including the LTIP, except as otherwise required or contemplated by this Agreement, the terms of such Employee Benefit Plan, applicable Law, or in accordance with an open enrollment period in the ordinary course of business; and
(iio) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and not issue any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than awards pursuant to Section 3.18); (2) split, combine the LTIP or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect previously issued pursuant to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other personLTIP, except in the ordinary course of business;
(I) implement as otherwise required or adopt any change in its accounting principles, practices or methodologies, other than as may be required contemplated by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingthis Agreement.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required provided or permitted herein, as set forth on Schedule 6.1 or as consented to in writing by Buyers, during the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between period commencing on the date of this Agreement and ending at the ClosingClosing or such earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing Period”), the applicable Sellers shall cause each Company shallto, and the each Company shall cause each Company Subsidiary of its Subsidiaries (if any) to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) , use commercially reasonable efforts to (Aa) preserve act and carry on the present business operationsBusiness in the Ordinary Course of Business, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except maintain and preserve intact its respective business organization, assets and properties and (c) preserve its present relationships with employees, customers, suppliers and other persons with which it has material business relations. Without limiting the generality of the foregoing, except as expressly provided or permitted herein or as set forth in Section 3.1(b) of the Disclosure Scheduleon Schedule 6.1, with or without the prior written consent of the Investor Buyers (which consent shall not be unreasonably withheld withheld, conditioned or delayed) or otherwise contemplated by the Transaction Documents), the applicable Sellers shall cause each Company not to, and each Company shall and shall cause each of its Subsidiaries (if any) not to, do, or permit to be done any of the Company Subsidiaries to notfollowing, directly or indirectly:
(Ai) amend or modify its articles of incorporation or bylaws or similar organizational documentsOrganizational Documents;
(Bii) issue, deliver or reissue, or sell, dispose or pledge any of its Ownership Interests, or authorize the same in respect of, any of its capital stock, any voting securities or any other Ownership Interests, phantom stock, stock appreciation rights, calls or commitments with respect to such securities of any kind, or grant phantom stock or other similar rights with respect to any of the foregoing;
(1iii) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities non-cash dividend or other propertydistribution of assets (including in stock, property or otherwise) in respect ofof any shares of capital stock or other Ownership Interests, any of its Capital Stock (in each case, other than pursuant dividends and distributions by a Subsidiary of the Companies to Section 3.18); the applicable Company or a direct or indirect wholly owned Subsidiary of the Companies;
(2iv) adjust, split, combine combine, subdivide or reclassify any of its Capital Stock reclassify, or issue or authorize the issuance of any other securities in respect ofredeem, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem repurchase or otherwise acquire any Capital Stock or any shares of its other securities or any rights, warrants or options to acquire any such Capital Stock capital stock or other securitiesOwnership Interests, as the case may be, or effect any like change in the capitalization of either Company or their respective Subsidiaries;
(Cv) issuecreate, deliverincur, sellassume, grantguarantee, cancel, or compromise any Indebtedness for borrowed money other than: Indebtedness (x) for borrowed money not in excess of $250,000 in the aggregate that is fully prepayable and terminable by a Company or a Subsidiary of a Company at or prior to Closing, (y) incurred in the Ordinary Course of Business or (z) incurred or cancelled pursuant to arrangements solely among or between a Company and one or more of its direct or indirect wholly owned Subsidiaries or solely among or between its direct or indirect wholly owned Subsidiaries;
(vi) mortgage, pledge or otherwise dispose subject any material portion of its assets to any Encumbrance, except for Permitted Encumbrances;
(vii) (A) increase or encumber grant any Capital Stockincrease in the compensation of any of the Companies’ or their respective Subsidiaries' officers, directors, employees or other individual service providers receiving total compensation in excess of $75,000 per annum, except as required pursuant to any Plan or in the Ordinary Course of Business, (B) grant any bonuses or pay any bonuses except for bonuses that have been accrued or earned as of the date of this Agreement but not yet paid, to any of the Companies’ or their respective Subsidiaries' officers, directors, employees or other voting securities individual service providers, (C) increase the benefits under any Plan or any securities convertible into or exchangeable foradopt, amend, or terminate any rightsPlan, warrants including any plan, policy or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance arrangement that would be a Plan if it were in existence as of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, in a manner inconsistent with respect the Ordinary Course of Business, (D) grant any additional rights to the severance or termination pay to any current or former officer, director or employee of a Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the its Subsidiaries (except a Company or any of its Subsidiaries may provide severance or termination pay to terminated employees on an individual basis in the Company Subsidiaries;
Ordinary Course of Business), (E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability vesting or payment (or fund or secure the payment) of any equity awards compensation for the benefit of any current or former officer, director, employee or independent service provider, (F) grant or amend any award under any Plan, (G) terminate any Key Employee other than for cause, (H) hire any new employees, other than to fill any currently open positions, whose economic employment terms will not exceed the amounts set forth on Schedule 6.1(b)(viii), or (I) enter into any new agreements or arrangements with independent contractors or consultants for an aggregate amount in excess of $250,000, that cannot be terminated on no more than five days’ notice;
(viii) approve or adopt a plan of liquidation, dissolution, merger, consolidation or other compensation reorganization other than pursuant to and as contemplated by the Reorganization;
(ix) enter into a new agreement that would be required to be disclosed on Schedule 4.13 if it had been entered prior to the date of this Agreement or benefits payable thereunder amend in a material manner, terminate, or add waive any new participants to any non-qualified retirement plans (or, with respect to material rights under any of the precedingagreements set forth on, communicate any intention or required to take such action)be set forth on, Schedule 4.13, in each case, other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course Ordinary Course of business)Business;
(GA) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its Tax accounting principlesmethods, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(JB) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax electionelection relating to Taxes, prepare (C) file any Tax Returns Return in a manner inconsistent in any material respect with past practice, file (D) amend any amended material Tax Return, consent (E) extend or waive the limitations period applicable to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company assessment, (F) surrender any Tax refund claim, (G) request any ruling or the Company Subsidiariessimilar guidance from any Taxing Authority, (H) enter into any material closing agreementagreement with any Taxing Authority, (I) settle or surrender compromise any right Tax liability or (J) take any action that would result in the termination of STR’s status as a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code other than pursuant to claim a refund of material Taxesand as contemplated by the Reorganization;
(Lxi) make any acquisition of another business or assets or liabilities of another Person that would reasonably be expected to be, individually or in the aggregate, material to the Companies and their respective Subsidiaries, taken as a whole (whether by merger, stock or asset purchase or otherwise);
(xii) sell, lease, mortgagelicense, pledgeassign, xxxxx x xxxx or security interesttransfer, abandon, allow to lapse, or otherwise encumber or dispose of (whether by merger, stock or asset sale or otherwise) any of its properties the Companies’ or any of their respective Subsidiaries' assets (excluding any Company Intellectual Property), rights, securities, properties, interests or businesses, except for (A) assets, except rights, securities, properties, interests or businesses with a fair market value or replacement cost (1whichever is higher) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 50,000 in the aggregate or not otherwise material to the Companies’ or any of their respective Subsidiaries' business, and (B) sales of inventory and dispositions of obsolete assets in the Ordinary Course of Business;
(xiii) sell, lease, license, sublicense, assign, transfer, abandon, allow to lapse or otherwise dispose of, any Company Intellectual Property (other than (A) non-exclusive licenses of Intellectual Property rights granted by any Company or any Subsidiary of any Company in the Ordinary Course of Business or (B) with respect to immaterial or obsolete Intellectual Property rights) or disclose any material trade secrets or confidential information of any Company or any Subsidiary of any Company or any of its or their respective customers to any other Person (other than in the Ordinary Course of Business to a Person bound by confidentiality obligations restricting the disclosure and use of such material trade secret or confidential information);
(xiv) (A) settle or compromise any claims, rights, or Litigation other than settlements or compromises where the amount paid is less than $100,000 in the aggregate and which do not impose any restrictions on the operations or businesses of the Companies or any of their Subsidiaries following the Closing or (B) commence any Litigation other than (1) for the routine collection of bills or (2) in such cases where the Companies or any of their Subsidiaries in good faith determine that failure to commence such Litigation would adversely affect in any material respect its business, so long as the Companies or any of their Subsidiaries consults with Buyers before the filing of such Litigation;
(xv) make any loans or advances to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, other than advances to employees and consultants for travel and other expenses in the Ordinary Course of Business;
(xvi) make any capital expenditure or commitment, capital addition or capital improvement or enter into any capital or operating lease which, individually is in excess of $50,000 or, in the aggregate, are in excess of $100,000;
(xvii) reduce the amount or scope of any coverage provided by existing insurance policies or reduce the amount or scope of any indemnity bonds issued at the request or for the benefit of the Companies or any of their Subsidiaries; or
(Mxviii) agree, commit, arrange or enter into any contract with respect to, or otherwise agree or commit understanding to do, do any of the foregoing. Notwithstanding the foregoing, nothing contained in this Agreement shall give Buyers, directly or indirectly, the right to control or direct the operations of the Companies or any of their respective Subsidiaries prior to the Closing. Prior to the Closing, the Sellers, the Companies and their respective Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Companies and their respective Subsidiaries’ operations and shall be permitted to pay down existing Indebtedness or make distributions or dividends of Cash and Cash Equivalents.
Appears in 1 contract
Conduct of Business Prior to Closing. From the Effective Date until the Closing Date, except as other provided in this Agreement or consented to in writing by Buyer (awhich consent shall not be unreasonably withheld or delayed), the Company and the Member shall, and the Selling Parties shall cause the Company and the Member to: (i) Except operate, conduct and carry on the Business and their operations only in the ordinary course and consistent with past practice and the Management Services Agreement; (ii) maintain and keep its properties in states of good repair and condition as otherwise at present, except for depreciation due to ordinary wear and tear and damage due to casualty; (iii) maintain in full force and effect insurance comparable in amount and in scope of coverage to that now maintained by them; (iv) perform in all material respects all of its obligations under material Contracts relating to or affecting its assets, properties, and the Business; (v) use their commercially reasonable efforts to maintain and preserve its business organization intact, to retain its key employees, and to maintain its relationship with its material suppliers and customers; and (vi) fully comply with and perform in all material respects all obligations and duties imposed on it by all federal and state Laws and all rules, regulations, and orders imposed by Governmental Authorities including maintaining in full force and effect all Permits held by the Company or under which it operates or conducts the Business. Notwithstanding the foregoing, except as expressly required by this Agreement, the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, Management Services Agreement or with the prior written consent of the Investor, between the date of this Agreement and the ClosingBuyer, the Company shalland the Member shall not, and the Company Selling Parties shall cause each the Company Subsidiary and the Member not to:
(a) (i) use commercially reasonable efforts to conduct its business only declare or pay any dividends on or make other distributions in respect of any equity interests of the ordinary course of business; and
Company or the Member, (ii) use commercially reasonable efforts to (A) preserve the present business operationsissue, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customersrepurchase, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) redeem or otherwise contemplated by acquire or modify the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles terms of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of interests in its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock capital or any of its other securities; , including the Membership Interests or (3iii) purchase, redeem grant or otherwise acquire issue any Capital Stock or any of its other securities or any rightsoptions, warrants or options rights to acquire subscribe for any such Capital Stock interest in the Company’s or other securitiesthe Member’s capital or securities convertible into same or commit to do any of the foregoing;
(Cb) issueform any direct or indirect subsidiary of the Company or the Member or windup, deliverliquidate, sell, grant, pledge dissolve or otherwise dispose of terminate the Company or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this AgreementMember;
(Dc) commence a (i) make any voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceedingdeclaration of, or consent to the entry of an order initiate any proceedings in, bankruptcy or insolvency or filing any petition for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or the Member, (ii) make any assignment for the benefit of the Company Subsidiaries, or any other liquidation or dissolution creditors on behalf of the Company or the Member or (iii) apply for the appointment of a custodian, receiver or trustee for the Company or the Member;
(d) amend, modify, waive or rescind any of the Organizational Documents of the Company Subsidiariesor the Member;
(Ee) terminatemake any capital expenditure(s) or enter into any Contract(s) therefor that is in excess of $10,000 individually or $50,000 in the aggregate;
(f) enter into any Contract that (i) would have been required to be set forth on Section 3.14(a) of the Disclosure Schedule if in effect on the date hereof, (ii) is outside the ordinary course of business consistent with past practice or (iii) cannot be assigned or transferred to Buyer;
(g) enter intointo or modify any Contract, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement transaction with any Affiliate, Member, director, manager, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in of the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)Company;
(Fh) terminate, enter intorescind, establishamend or otherwise modify, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver under, any Material Contract;
(i) enter into any Contract for the purchase of any real property or consent under the sale or lease (including any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course extension thereof) of business), plan or arrangementany Leased Real Property, or any trust agreement amendment thereto;
(j) acquire by merging or similar arrangementconsolidating the Company or the Member with, or purchase any of the equity interests or material assets of, directly or indirectly, any other Person or any business or division thereof;
(k) related theretocancel any Indebtedness owed to or claims held by the Company or the Member or waive any other rights held by the Company or the Member;
(l) create, in respect of any directorincur, officerassume, employee modify or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based awardIndebtedness or enter into, take as lessee, any action to accelerate the vestingcapital lease;
(m) institute, exercisability abandon, settle or payment (compromise or fund or secure the payment) of make any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, material decision with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money pending or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, threatened claim or proceeding Action by, against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of involving the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its AffiliatesMember;
(Kn) change establish or increase any material accounting method profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit with respect to Taxes, make, change employees or revoke consultants of the Company (or any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating other Person who provides services to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material TaxesMember);
(Lo) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of make any of its properties or assetsincrease or, except (1) with respect to an employee having an annual base salary of less than $25,000 and in the ordinary course of business consistent with past practicepractices, or (2) with respect to transactions involving not in excess of $150,000,000 decrease in the aggregatecompensation (including base salary, wages and bonus opportunities) of the directors, managers, officers, employees or consultants of the Company or the Member (or any other Person who provides services to the Company; or
(Mp) enter into incur any contract with respect toadditional Indebtedness, or otherwise agree guarantee any Indebtedness or commit to doobligation of any party other than Buyer, any except as such Indebtedness may be incurred in the ordinary course of business and/or the foregoingprincipal amount of such indebtedness does not exceed $50,000.00.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except Subject to Section 3.1(c), except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the InvestorInvestor (which shall not be unreasonably withheld or delayed), between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and;
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business present relationships with customers, suppliers, consultants and others having business dealings with the Company; providedand
(iii) use commercially reasonable efforts to maintain (A) all of the material assets and properties of, howeveror used by, the Company or any Company Subsidiary in its current condition, with the exception of ordinary wear and tear, and (B) insurance upon all of the properties and assets of the Company and the Company Subsidiaries in such amounts and of such kinds comparable to that nothing in effect on the date of this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental EntityAgreement.
(b) Except Subject to Section 3.1(c), except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, between the date of this Agreement and the Closing, the Company shall not, and shall cause the Company Subsidiaries to not:
(Ai) amend its articles of incorporation or bylaws or similar organizational documents, other than pursuant to the Articles Amendment Proposal;
(Bii) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other propertyproperty and, with respect to ordinary cash dividends, in excess of such amounts paid in the prior quarter) in respect of, any of its Capital Stock (other than pursuant to Section 3.183.19); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(Ciii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(Div) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(Ev) terminate, enter into, amend, modify (including by way of interpretation), renew (other than automatic renewal) or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business; provided that, any contract, agreement or arrangement that provides for payments or benefits to any director, officer, employee or consultant upon a change in control of the Company or Bank shall not be deemed to be in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)arrangement;
(Fvi) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, consultant (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(Gvii) make any other change in employment terms for any of its directors, officers, employees and consultants outside other than changes of employment terms of non-executive officer employees and consultants in the ordinary course of business; provided that, any employment term that provides payments or benefits to any director, officer, employee or consultant upon a change in control of the Company or Bank shall not be deemed to be in the ordinary course of business);
(Hviii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(Iix) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(Jx) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(Kxi) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material TaxesTaxes or incur any material tax outside of the ordinary course of business;
(Lxii) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) sales of loans in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving practice and in an aggregate amount not in excess of $150,000,000 in the aggregate150,000,000; or
(Mxiii) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing.
(c) Nothing in Section 3.1(a) or (b) shall prohibit the Company or any Company Subsidiary from taking or refraining from taking, any action at the request or instruction of any Governmental Entity or as required by applicable Law.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between From the date of this Agreement until each of the First Closing and the Second Closing, except with the consent of the Manager,
(i) The Company shall, and shall cause the Bank to, conduct its business in the usual, ordinary course, in substantially the same manner as previously conducted, in accordance with applicable law, in such manner as to maintain the business, employees and goodwill of the Bank and as is consistent with sound banking practices;
(ii) The Company shall, and shall cause the Bank to, maintain, renew, keep in full force and effect and preserve its corporate existence, business organization and material rights, franchises, permits, and licenses and retain its present employee force so that all the foregoing will be available to the Company at and after the Closing Date;
(iii) The Company shall, and shall cause each Company Subsidiary the Bank to:, maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions;
(iiv) The Company shall, and shall cause the Bank to, use commercially reasonable efforts to conduct continue its business only customer relationships;
(v) The Company shall not, and shall not permit the Bank to, directly or indirectly (i) declare, pay, or make any dividend or distribution to the holders of the Company’s capital stock or as any subsidiary, except pursuant to the terms of the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series D or as expressly provided in the ordinary course of businessthis Agreement; and
(ii) use commercially reasonable efforts to (A) preserve call, redeem, exchange for other securities, or otherwise acquire, any shares of the present business operations, organization (including officers and employees) and goodwill capital stock of the Company or any subsidiary; (iii) sell, issue or otherwise permit to become outstanding any debt or equity securities of the Company or any Subsidiary or any rights or options to acquire or convert into such securities except for employee stock options and shares issued upon the exercise of employee stock options in accordance with their term existing as of the date of this Agreement; (iv) otherwise change in any manner the issued and outstanding capital of the Company Subsidiary or the Bank; or (v) agree to do any of the foregoing; and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with if the Company; provided, however, Company takes any action that nothing in this clause (ii) shall limit or would require any actions that the Board of Directors may, in good faith, determine antidilution adjustment to be inconsistent with their duties made under the Warrant on or after the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) date of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documentsthis Agreement, the Company shall make appropriate adjustments such that the Investors will receive the benefit of such transaction as if the Securities to be purchased by the Investors at the Closing had been outstanding as of the date of such action;
(vi) Except as provided by this Agreement, the Company shall not, and shall cause not permit the Company Subsidiaries Bank, to not:
(A) change or amend its articles of incorporation or bylaws or similar organizational documentsto enter into a plan of consolidation, merger, reorganization or share exchange with any Person, or to enter into a letter of intent or agreement in principal to do so;
(Bvii) (1) declareThe Company shall not, set aside and shall not permit the Bank, to organize any subsidiary, acquire capital stock or pay other equity securities of any distributions corporation or dividends onacquire equity ownership interest in or the assets of any business, except upon foreclosure of any existing loan or any loan permitted hereunder, or make enter into any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (transactions other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(Iviii) implement or adopt any change in its accounting principlesThe Company shall not, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against itand shall cause the Bank not to, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or and the Company Subsidiaries orBank: (i) sell, after the Closingpledge, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreementencumber, or surrender otherwise dispose of or transfer any right to claim a refund of material Taxes;
loan or lease receivables; (Lii) sell, lease, mortgagepledge, encumber or otherwise dispose of any fixed assets; or (iii) sell, lease, pledge, xxxxx x xxxx or security interest, encumber or otherwise encumber or dispose of or transfer any of its other properties or assets, including without limitation any bonds or other securities;
(ix) The Company shall not, and shall cause the Bank not to, directly or indirectly terminate or reduce or commit to terminate or reduce any Federal Reserve Bank or Federal Home Loan Bank line of credit or the availability of any funds under any other loan or financing agreement pursuant to which the Bank is a borrower;
(x) The Company shall not, and shall cause the Bank not to, except in the ordinary course of business: (1i) borrow or agree to borrow any money or incur any other liabilities or guarantee the obligations of others (except pursuant to trade letters of credit, acceptance liabilities and endorsements of drafts and other commercial paper in the ordinary course of business and in accordance with prudent practice); (ii) make or purchase loans or extend credit, including in the form of lease financing arrangements, or commit to do the same; (iii) commit to purchase or sell futures or forward contracts, or make any standby contracts or other option arrangements or obligations to purchase or sell option contracts; (iv) make any commitment to purchase foreign currencies or exchange U.S. dollars; (v) issue or commit to issue commercial or standby letters of credit or purchase participations therein; (vi) purchase bankers’ acceptances; (vii) borrow or lend securities; (viii) make or incur any other commitments or Liabilities or incur significant contingencies; (ix) adopt or engage in any funding strategy that is unorthodox or in consistent with past practice, practices; or (2x) with respect indemnify or agree to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) indemnify others or enter into any contract with respect to, material commitment or otherwise agree make any material capital expenditures or commit to do, any of the foregoing.commitments;
Appears in 1 contract
Samples: Securities Purchase Agreement (Mission Community Bancorp)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required set forth in this Agreement or as consented to in writing by Parent, during the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between period from the date of this Agreement and until the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts Closing Date or earlier termination of this Agreement pursuant to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documentsterms, the Company shall continue to operate and shall cause conduct the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) Business in the ordinary course of business consistent with past practice, and shall not, without the prior written approval of Parent (which approval shall not be unreasonably withheld or delayed) or as otherwise contemplated by this Agreement and Section 5.1(a) of the Disclosure Schedule take any of the following actions:
(2i) with respect to transactions involving the Company or any Subsidiary, (A) amend its constituent documents in any material respect, (B) issue or agree to issue any additional shares of its capital stock (or voting securities), (C) issue or agree to issue any securities convertible into or exercisable or exchangeable for shares of its capital stock (or voting securities), (D) sell, transfer or otherwise dispose of or encumber any shares of its capital stock (or voting securities), (E) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock (or voting securities), in cash or otherwise, or (F) purchase or redeem shares of its capital stock (or voting securities);
(ii) sell, transfer or otherwise dispose of or encumber any of the Assets or Real Property, other than (A) in the ordinary course of business consistent with past practice or (B) any properties or assets the value of which does not exceed in excess the aggregate One Hundred Thousand Dollars ($100,000);
(iii) except as required by Law or contractual obligations and except for borrowings under any existing lines of $150,000,000 credit in the ordinary course of business, (A) create, incur or assume any material long-term or short-term debt, except loans and advances among the Company and its Subsidiaries, (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any Person other than any Subsidiary, except in the ordinary course of business consistent with past practice or (C) make any material loans, advances or capital contributions to or investments in any Person other than its Subsidiaries (except for loans or advances to employees made in the ordinary course of business consistent with past practice);
(iv) except as required by Law, (A) grant any increase in the compensation of employees of the Company or its Subsidiaries, except for increases in the compensation of employees in the ordinary course of business consistent with past practice, (B) hire new employees other than in the ordinary course of business consistent with past practice, (C) enter into any employment, severance, consulting or other compensation agreement with any existing or new director, officer or any other employee that has the title "Group Manager" or any title more senior thereto or (D) commit to any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or amend or commit itself to amend any of such plans, funds or similar arrangements other than in the ordinary course of business consistent with past practice;
(v) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than inventory) which are material, individually or in the aggregate, to the Business taken as a whole; or
(Mvi) make any capital expenditure not listed in Section 5.1(a) of the Disclosure Schedule, or enter into any commitment to make any capital expenditure in excess of Two Hundred Thousand Dollars ($200,000);
(vii) enter into or terminate any contract contract, other than in the ordinary of business consistent with past practice, that would be material to the Company or the Business;
(viii) settle any litigation or other proceeding in any manner that would result in the Company or any Subsidiary paying any Person in excess of One Hundred Fifty Thousand Dollars ($150,000);
(ix) fail to comply in any material respect towith (A) all Laws applicable to it and the Business and (B) all Laws compliance with which is required for the valid consummation of the transactions contemplated by this Agreement; or
(x) agree, whether in writing or otherwise agree or commit otherwise, to do, do any of the foregoing.
(b) The Company covenants and agrees that, prior to the Closing, it shall, to the extent that it has knowledge of any of the following, promptly notify Parent in writing of all events, circumstances, facts and occurrences arising subsequent to the date of this Agreement which could reasonably be expected to result in any material breach of a representation or warranty or covenant of the Company in this Agreement.
(c) The Company will use reasonable efforts to maintain and preserve and keep in full force and effect the existence and material rights of the Company and its Subsidiaries, to preserve the material business organizations of the Company and its Subsidiaries, to keep available to Parent the officers and key employees of the Company and its Subsidiaries, and to preserve the present relationships of the Company with its material suppliers and customers.
Appears in 1 contract
Conduct of Business Prior to Closing. The Company and the Selling Stockholders agree that, between the date hereof and the Closing Date, the Company and its Subsidiaries will, and the Selling Stockholders will cause the Company and its Subsidiaries to, (a) Except conduct the business of the Company and its Subsidiaries in the ordinary course of business and (b) use commercially reasonable efforts to preserve intact the present business organization of the Company and its Subsidiaries, keep available the services of the officers and employees of the Company and its Subsidiaries, and preserve the Company’s and the Subsidiaries’ goodwill and commercial relationships with all customers, suppliers, licensors, licensees, dealers, distributors, lenders and all other Persons having material business dealings with the Company and/or its Subsidiaries. Between the date hereof and the Closing Date, except as set forth in Schedule 6.1 or as otherwise expressly required by this Agreement (including Section 6.2), in furtherance of and without limiting the Transaction Documents or applicable Lawfirst sentence of this Section 6.1, by the performance of any Material Contract that was Previously DisclosedCompany shall not, or with and shall cause its Subsidiaries not to, without the prior written consent of the Investor, between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor Buyer (which consent shall not be unreasonably withheld or delayed) ), directly or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to notindirectly:
(Aa) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declareauthorize for issuance, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, granttransfer or otherwise dispose of, pledge or authorize or propose, agree or commit to issue, sell, transfer or otherwise dispose of (whether through the issuance or encumber granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance capital stock of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, its Subsidiaries of any class or any other liquidation securities or dissolution equity equivalents of the Company or any of its Subsidiaries (including securities convertible into or exchange for any stock or other securities or equity equivalents of the Company or any of its Subsidiaries), except for the issuance of shares in the capital stock of the Company on exercise of options to purchase capital stock of the Company prior to Closing and except for issuances in connection with the Pre-Closing Conversion;
(b) amend, modify or make any other change to the Articles or By-laws of the Company or any of the Organizational Documents of its Subsidiaries, or amend, modify or otherwise change the authorized capital stock of the Company or any of its Subsidiaries;
(Ec) terminateacquire (by merger, enter intoconsolidation, amend, modify (including by way acquisition of interpretationstock or assets or otherwise), renew purchase, sell, transfer, mortgage, pledge, subject to a Lien, license, allow to lapse or grant expire, abandon or otherwise dispose of any waiver assets, properties or consent under any employment, offer, consulting, severance, change rights with a value or purchase price in control excess of $100,000 individually or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or makeaggregate, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultantsinventory sold or otherwise disposed of, non-executive officers and non-directors in the ordinary course of business) supplies purchased or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefitsotherwise acquired, in the ordinary course of business)each case, plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(Id) implement purchase services, make any capital or adopt other expenditures or incur any change other liabilities, or enter into any transaction or otherwise commit or obligate the Company or any of its Subsidiaries to purchase services, make any capital or other expenditures or incur any other liabilities, in its accounting principles, practices excess of $100,000 individually or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against itin the aggregate, except for an actionservices purchased, suit, claim expenditures made or proceeding that is settled liabilities incurred in the ordinary course of business in an amount business;
(e) enter into or adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, reorganization, restructuring or recapitalization or enter into any new, or discontinue any existing, line of business;
(f) except for consideration not in excess the Pre-Closing Conversion, reclassify, amend the terms of, combine, split, subdivide or redeem, purchase or otherwise acquire, or pledge or subject to a Lien, directly or indirectly, any of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business capital stock of the Company or any of its Subsidiaries of any class or any other securities or equity equivalents of the Company Subsidiaries or, after the Closing, the Investor or any of its AffiliatesSubsidiaries, or make any other change with respect to the capital structure of the Company or any of its Subsidiaries, or authorize, propose or agree or commit to any of the foregoing;
(Kg) authorize, declare, set aside, make or pay any dividends or other distributions (whether in cash, stock, property or otherwise), with respect to any capital stock of the Company or any of its Subsidiaries of any class or any other securities or equity equivalents of the Company or any of its Subsidiaries;
(h) cancel or terminate any of the Insurance Policies or cause any of the coverage thereunder to lapse, or reduce any coverage thereunder, unless simultaneously with such termination, cancellation, lapse or reduction, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated, lapsed or coverage-reduced policies for substantially similar premiums are in full force and effect;
(i) make, change or revoke any Tax elections, change an annual accounting period, adopt or change any material accounting method with respect to Taxes, makeenter into any closing agreement, change settle or revoke compromise any Tax electionAction with respect to Taxes, prepare surrender any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Returnright to claim a refund of Taxes, consent to any extension or waiver of any statute of limitations the limitation period with respect to Taxes, or take any material Tax claim other discretionary positions with respect to Taxes payable by or assessment relating to affecting the Company or the Company any of its Subsidiaries, or amend any Tax Return;
(j) amend, modify, renew or terminate, or grant any release, waiver or relinquishment of any right under, or take any affirmative action to amend, modify, renew, or terminate or grant any release, waiver or relinquishment of any right under, any Material Contract or Lease or enter into any material closing contract, agreement, lease or surrender any right to claim sublease that if in existence as of the date of this Agreement would have constituted a refund Material Contract or a Lease or is outside of material Taxesthe ordinary course of business of the Company and its Subsidiaries;
(Lk) sellmake any capital investment in, lease, mortgage, pledge, xxxxx x xxxx or security interestany loan to, or otherwise encumber any acquisition of the securities or dispose assets of, any other Person (or series of related capital investments, loans, and acquisitions), other than the purchase of inventory or supplies in the ordinary course of business;
(l) make any of its properties change in any financial or assetstax accounting practice, policy or procedure except as required by GAAP, or change the Company’s fiscal year;
(m) settle or compromise any Action, except for any such settlement or compromise involving only monetary damages in an amount not in excess of $100,000 for any individual Action or in the aggregate with all other Actions;
(1i) except in the ordinary course of business, (A) delay, defer or postpone the payment of accounts payable or other liabilities or obligations, (B) take any action to accelerate the collection of accounts receivable, or (C) otherwise change any policy or practice regarding extensions of credit, prepayments, sales, collections, receivables or payment of accounts, (ii) fail to manage or purchase inventory in the xxxxxxxx xxxxxx xx xxxxxxxx, xx (xxx) otherwise fail to manage the working capital of the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(o) except as expressly required by any existing Benefit Arrangement or as required by law, (i) grant or announce any equity awards or increase in any manner the compensation of, or enter into any new bonus, incentive, employee benefits, severance or termination agreement or arrangement with, any of its current or former directors, officers or employees of the Company or any of its Subsidiaries, (ii) grant or increase any severance or termination pay to any current or former directors, officers or employees of the Company or its Subsidiaries, (iii) loan or advance any money or other property to any current or former directors, officers or employees of the Company or any of its Subsidiaries, (iv) establish, adopt, enter into, amend or terminate any Benefit Arrangement or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Arrangement if it were in existence as of the date of this Agreement, or (2v) pay or agree to pay any pension, retirement allowance, termination or severance pay or other employee benefit not required by any Benefit Arrangement;
(p) hire any employee whose total annual compensation exceeds $100,000 or who would be an executive officer of the Company or any of its Subsidiaries or terminate the employment of any employee of the Company and its Subsidiaries whose total annual compensation exceeds $100,000 or who is currently an executive officer of the Company or any of its Subsidiaries;
(q) enter into a collective bargaining agreement or contract or agreement with any trade union or labor organization, or voluntarily recognize any trade union or labor organization as a representative of any of the employees of the Company or any Subsidiary, except as required by applicable law;
(r) make any material change with respect to transactions involving not in excess the research and development of $150,000,000 new products of the Company and its Subsidiaries;
(s) except in the aggregateordinary course of business, incur any indebtedness for borrowed money or any other indebtedness that would be considered Indebtedness of the Company or any of its Subsidiaries; or
(Mt) enter into any contract with respect to, or otherwise agree an agreement or commit to do, any of the foregoingactions described in subsection (a) through (s) above.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Conduct of Business Prior to Closing. (a) Except as otherwise expressly provided or permitted herein, as set forth on Schedule 6.1, as required by contract in effect on the Transaction Documents date hereof or applicable Law, by the performance of any Material Contract that was Previously Disclosedlaw, or with as consented to in writing by Buyer, during the prior written consent of the Investor, between period commencing on the date of this Agreement and ending at the ClosingEffective Time or the earlier termination of this Agreement, the Company shall, and the Company shall cause each Company Subsidiary of its Subsidiaries to:
, (ia) act and carry on its business in all material respects in the Ordinary Course of Business and in compliance in all material respects with all applicable laws and regulations and (b) use commercially reasonable efforts to conduct maintain and preserve its and each of its Subsidiaries’ business only in the ordinary course of business; and
(ii) organization, assets and properties, to use commercially reasonable efforts to (A) preserve keep available the present business operations, organization (including services of each of their current officers and employees) employees and goodwill to preserve their present relationships with patients, suppliers and other Persons with which the Company or any of its Subsidiaries has significant business relations. Without limiting the generality of the Company and any Company Subsidiary and (B) preserve business relationships with customersforegoing, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit except as expressly provided or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties permitted herein or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth on Schedule 6.1, or as required by contract in Section 3.1(b) effect on the date hereof or by law, from and after the date hereof until the Effective Time or the earlier termination of this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do any of the Disclosure Schedule, with following without the prior written consent of the Investor Buyer (which consent shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:):
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2a) split, combine or reclassify any of its Capital Stock capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock shares of its capital stock or any of its other securities; ;
(b) authorize for issuance, issue or sell or agree or commit to issue or sell (3whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) purchaseany stock of any class or any other securities or equity equivalents (other than the issuance of Common Shares upon the exercise of Options that are outstanding on the date of this Agreement);
(c) make any change to the Certificate of Incorporation or By-laws, redeem or otherwise acquire the organizational or governing documents of its Subsidiaries, terminate or alter its legal existence and or business organization;
(d) (i) incur any Capital Stock Indebtedness, except for borrowings under the Company’s existing credit facilities, or guarantee any Indebtedness of another Person, (ii) issue or sell any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, or enter into any “keep well” or other securities agreement to maintain any financial statement condition of another Person, or (iii) make any loans, advances (other than advances to employees of the Company and its Subsidiaries in the Ordinary Course of Business) or capital contributions to, or investment in, any other Person, other than by the Company or any rights, warrants of its Subsidiaries in any of the Company’s direct or options to acquire any such Capital Stock or other securitiesindirect wholly-owned Subsidiaries;
(e) fail to pay or satisfy any Indebtedness when the same becomes due and payable;
(f) knowingly waive, release, cancel, or assign any material rights or claims, other than in the Ordinary Course of Business (including any material write-off or other material compromise of any accounts receivable or other receivable of the Company or any of its Subsidiaries); provided, however, that, for the avoidance of doubt, the Company shall not be prohibited from paying any Indebtedness or any expenses in connection with the Merger and related transactions);
(g) materially change accounting policies or procedures or Tax elections, except as required by GAAP or applicable law;
(i) materially increase the rates of direct compensation or bonus compensation payable or to become payable to any officer, management level employee, agent or consultant of the Company or any Subsidiary, except (A) in the Ordinary Course of Business, (B) in accordance with the existing terms of contracts entered into prior to the date of this Agreement, (C) issuefor the acceleration of unvested Options and/or restricted stock as provided for under the applicable incentive agreements, deliveror (D) for bonuses payable to senior management of the Company in connection with the transactions contemplated by this Agreement which are approved by the Company Board, or (ii) adopt any new Benefit Plan or materially amend or modify any existing Benefit Plan;
(i) (i) merge with, enter into a consolidation with or otherwise acquire an interest 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), or (ii) otherwise acquire (including, through leases, subleases and licenses of real, personal or intangible property) any material assets, except, in the case of this clause (ii), in the Ordinary Course of Business;
(j) sell, grantlease, license, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities properties or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution assets of the Company or any of its Subsidiaries other than in the Company SubsidiariesOrdinary Course of Business or in connection with the disposition of obsolete properties or assets;
(Ek) terminate, enter into, amend, modify fail to maintain any of the Insurance Policies in full force and effect;
(including by way of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of businessl) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan Material Contract to which the Company or arrangement any of its Subsidiaries is party, except for terminations or adopt any new employee benefit plan amendments provided by the terms thereof or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course Ordinary Course of businessBusiness;
(m) settle or compromise any Litigation or other disputes (whether or not commenced prior to the date of this Agreement) other than settlements or compromises for Litigation or other disputes where the amount paid in settlement or compromise does not exceed $100,000 individually or $500,000 in the aggregate for all such Litigation or other disputes;
(n) terminate or materially and adversely modify its relationships with any material suppliers, trade creditors or trade debtors except in the Ordinary Course of Business;
(o) make any capital expenditure or commitment for the acquisition of assets or properties in excess of One Million One Hundred and Ninety Three and No/100 Dollars ($1,193,000.00);
(Fp) terminateenter into any executory agreement, enter intocommitment or undertaking, establishwhether in writing or otherwise, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to do any of the precedingactivities prohibited by the foregoing provision, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for or permit any of its equity holders, directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assumemembers, guarantee or endorsemanagers, partners, or otherwise become responsible for Person or group of Persons possessing and/or exercising similar authority to authorize the obligations taking of, any other person, except in action prohibited by the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingforegoing provisions.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except Subject to Section 3.1(c), except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the InvestorInvestor (which shall not be unreasonably withheld or delayed), between the date of this Agreement and the Closing, the Company shall, and the Company shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only in the ordinary course of business; and;
(ii) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business present relationships with customers, suppliers, consultants and others having business dealings with the Company; providedand
(iii) use commercially reasonable efforts to maintain (A) all of the material assets and properties of, howeveror used by, the Company or any Company Subsidiary in its current condition, with the exception of ordinary wear and tear, and (B) insurance upon all of the properties and assets of the Company and the Company Subsidiaries in such amounts and of such kinds comparable to that nothing in effect on the date of this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental EntityAgreement.
(b) Except Subject to Section 3.1(c), except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, between the date of this Agreement and the Closing, the Company shall not, and shall cause the Company Subsidiaries to not:
(Ai) amend its articles of incorporation or bylaws or similar organizational documents, other than pursuant to the Articles Amendment Proposal;
(Bii) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other propertyproperty and, with respect to ordinary cash dividends, in excess of such amounts paid in the prior quarter) in respect of, any of its Capital Stock (other than pursuant to Section 3.183.19); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(Ciii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(Div) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(Ev) terminate, enter into, amend, modify (including by way of interpretation), renew (other than automatic renewal) or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-non- executive officers or consultants, in the ordinary course of business; provided that, any contract, agreement or arrangement that provides for payments or benefits to any director, officer, employee or consultant upon a change in control of the Company or Bank shall not be deemed to be in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business)arrangement;
(Fvi) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, consultant (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(Gvii) make any other change in employment terms for any of its directors, officers, employees and consultants outside other than changes of employment terms of non-executive officer employees and consultants in the ordinary course of business; provided that, any employment term that provides payments or benefits to any director, officer, employee or consultant upon a change in control of the Company or Bank shall not be deemed to be in the ordinary course of business);
(Hviii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(Iix) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(Jx) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(Kxi) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material TaxesTaxes or incur any material tax outside of the ordinary course of business;
(Lxii) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) sales of loans in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving practice and in an aggregate amount not in excess of $150,000,000 in the aggregate150,000,000; or
(Mxiii) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing.
(c) Nothing in Section 3.1(a) or (b) shall prohibit the Company or any Company Subsidiary from taking or refraining from taking, any action at the request or instruction of any Governmental Entity or as required by applicable Law.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except as otherwise expressly set forth on (1) Schedule 6.1 or (2) Schedule 1.1(b), as required by the Transaction Documents or applicable Law, as required by this Agreement or as consented to in writing by Buyer, during the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between period commencing on the date of this Agreement and ending at the ClosingEffective Time or such earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing Period”), Seller shall use its reasonable best efforts to, and shall cause the Company and each of its Subsidiaries to use reasonable best efforts to (i) carry on its business in the ordinary course of business consistent with past practice in all material respects, (ii) preserve substantially intact the business organization and assets of the Company and its Subsidiaries, and keep available the services of the current officers, employees and consultants of the Company and its Subsidiaries and (iii) preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has significant business relations.
(b) Without limiting the generality of Section 6.1(a), except as set forth on (1) Schedule 6.1 or (2) Schedule 1.1(b), as required by Law, as required by this Agreement or as consented to in writing by Buyer, the Company shall, Seller and the Company shall not, and shall cause each Company Subsidiary the Company’s Subsidiaries not to, directly or indirectly, do any of the following without the prior written consent of Buyer:
(i) use commercially reasonable efforts split, combine, recapitalize or reclassify any Units or other Equity Interests of the Company or its Subsidiaries;
(ii) declare, set aside, make or pay any dividend or other distribution in respect of the Units or any other Equity Interests of the Company or any of its Subsidiaries (other than dividends or distributions made in cash prior to conduct the Closing);
(iii) authorize for issuance, issue, deliver, pledge, transfer, dispose of or sell or agree or commit to issue, deliver, pledge, transfer, dispose of or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Units or other Equity Interests of the Company or any of its business only Subsidiaries;
(iv) redeem, purchase, repurchase, reclassify, combine, split or subdivide any Units or other Equity Interests of the Company or any of its Subsidiaries;
(v) amend, change, supplement, modify or waive any provision of the certificate of formation, limited liability company agreement or other organizational documents of the Company or any of its Subsidiaries;
(vi) (A) create, incur, guarantee or assume any Company Debt, except for borrowings under the Company’s or any of its Subsidiaries’ revolving credit facilities in existence as of the date hereof in the ordinary course of business; and
, the accrual of interest under existing Company Debt or Company Debt that will be satisfied in full at or prior to the Closing, (iiB) use commercially reasonable efforts guarantee any indebtedness of another Person, (C) issue or sell any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of another Person, (D) other than routine advances to (A) preserve the present business operations, organization (including officers and employees) and goodwill employees of the Company and its Subsidiaries in the ordinary course of business or the extension of trade credit or credits to customers in the ordinary course of business, make any loans, advances or capital contributions to, or guarantees for the benefit of, or other investment in, any other Person, other than the Company Subsidiary and or any of its direct or indirect wholly-owned Subsidiaries, or (E) mortgage, pledge or otherwise encumber any assets, or create or suffer any lien thereupon, except, in each case, in the ordinary course of business or pursuant to credit facilities in existence on the date hereof (or any extensions, renewals or refinancings thereof) or with respect to Permitted Liens;
(vii) change accounting or auditing policies or procedures, except as required by GAAP;
(viii) except as required by any Employee Benefit Program, (A) amend, increase the rates of compensation payable or to become payable or the benefits provided to any officer, director or executive level employee of the Company or any of its Subsidiaries, except (1) in accordance with the existing terms of Contracts entered into prior to the date of this Agreement or (2) annual increases in the ordinary course of business for employees who receive less than $100,000 in base compensation; (B) preserve business relationships with customersadopt any new employee benefit or compensation plan or arrangement or amend, suppliersmodify or terminate any existing Employee Benefit Program; (C) take any action to accelerate the vesting, consultants and others having business dealings with the Companyfunding or payment of any compensation or benefit under any Employee Benefit Program; provided, however, that nothing in this clause or (iiD) shall limit grant or require pay to any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties current or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) former employee of the Disclosure ScheduleCompany or any of its Subsidiaries any bonus, with the prior written consent of the Investor (which shall not be unreasonably withheld incentive compensation, severance, change in control or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends ontermination pay, or make any other distributions modifications thereto or increases therein, except, in each case, to the extent the associated liability is included as a Company Transaction Expense;
(whether in cash, securities ix) (A) terminate the employment or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance engagement of any other securities management level employee or salaried employee with annual base compensation in respect of, in lieu excess of or in substitution for Capital Stock $75,000 of the Company or any of its Subsidiaries other securities; than for cause or poor performance consistent with past practice or (3B) purchase, redeem hire or otherwise acquire engage any Capital Stock individual who would be an employee or other service provider of the Company or any of its Subsidiaries, other securities or any rights, warrants or options to acquire any such Capital Stock or other securitiesthan individuals who receive less than $100,000 in base compensation;
(Cx) issuerevoke or modify any material Tax election; commence, deliversettle or compromise any Proceeding relating to material Taxes; consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes (other than any validly obtained extension of the due date of a Tax Return); file any income or other material Tax Return other than on a basis consistent with past practice (or fail to pay any Tax liability shown to be due and payable on such Tax Return); or enter into any Tax allocation, Tax sharing, Tax receivable, Tax indemnity agreement, or any closing or other Contract relating to material Taxes;
(xi) amend or change the rates of compensation payable or to become payable to any officer, director or executive level employee of the Company or any of its Subsidiaries, except (A) in accordance with the existing terms of contracts entered into prior to the date of this Agreement or (B) annual increases in the ordinary course of business;
(xii) sell, grantlease, transfer, assign, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities material properties or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any of the Company Subsidiaries, or any other liquidation or dissolution material assets of the Company or any of its Subsidiaries, except for Permitted Liens, assignments and/or transfers of assets between the Company Subsidiaries;
(E) terminate, enter into, amend, modify (including by way and wholly-owned Subsidiaries and sales of interpretation), renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (inventory and other than, with respect to non-executive officers or consultants, goods and services in the ordinary course of business;
(xiii) agree to enter into any merger, consolidation, recapitalization or makeother business combination or make any other acquisition of any business or Person;
(xiv) adopt a plan of complete or partial liquidation, grant dissolution, merger, consolidation, restructuring, recapitalization or promise any bonus other reorganization of the Company or any wageof its Subsidiaries, salary or compensation increase to any directorotherwise alter the Company’s or a Subsidiary’s corporate structure;
(xv) except as specifically provided in this Agreement, officer, employee, sales representative amend or consultant terminate (except in the case event the term thereof ends) any Significant Contract, except for amendments, extensions or renewals of consultants, non-executive officers and non-directors Significant Contracts in the ordinary course of business) business or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors Contracts representing less than $15,000 in recurring monthly revenue;
(xvi) implement any employee layoffs that would require notice under the WARN Act;
(xvii) authorize, or make any commitment with respect to, any unbudgeted capital expenditure in excess of $25,000 individually or $50,000 in the aggregate;
(xviii) enter into any Contract with any Related Party of the Company or any of its Subsidiaries;
(xix) enter into any Contract with any Governmental Body (other than customer contracts in the ordinary course of business);
(Fxx) terminatesettle, enter intopay, establish, adopt, amend, modify (including by way of interpretation), make new grants discharge or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangementcompromise, or agree to settle, pay, discharge or compromise, any trust agreement claim, liability or Proceeding (whether or similar arrangement) related thereto, in respect not commenced prior to the date of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such actionthis Agreement), other than with respect settlements or compromises of civil litigation that involves monetary damages of less than $100,000 only where the settlement payment is paid prior to the salary of Effective Time or is paid by any non-executive officer employee (and, with respect to such employee, only in Person other than the ordinary course of business)Company and its Subsidiaries;
(Gxxi) make permit the lapse of any existing policy of insurance relating to the business or assets of the Company and its Subsidiaries unless replaced by comparable insurance with comparable coverage;
(xxii) permit the lapse of any material right relating to Company Intellectual Property Assets or any other change intangible asset used in employment terms for the business of the Company or any of its directors, officers, employees and consultants outside the ordinary course of businessSubsidiaries;
(Hxxiii) incur cancel, compromise, waive or release any indebtedness for borrowed money material right or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any claim other person, except than in the ordinary course of business;
(Ixxiv) implement accelerate the collection of or adopt discount any change in its accounting principlesaccounts receivable, practices delay the payment of accounts payable or methodologiesdefer expenses, other than as may be required by GAAP reduce inventories or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against itotherwise increase cash on hand, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(Mxxv) enter into any contract with respect toexecutory agreement, commitment or otherwise agree undertaking, whether in writing or commit otherwise, to do, do any of the foregoingactivities prohibited by the foregoing provisions.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except Until the Closing Date, the Selling Stockholders shall cause the Companies: (A) except as otherwise expressly required contemplated or permitted by this Agreement, to conduct their respective business in the Transaction Documents ordinary course, consistent with past practice, and, in each case, in accordance with applicable Law and, to the extent possible, in a manner consistent with this Agreement; and (B) to not, without the prior written consent of UEC, enter into any material transaction or applicable Lawincur any material Liability outside of the ordinary course of their respective businesses, by consistent with past practice, or so as to cause one or more of the performance conditions precedent for the benefit of UEC set out in Article 6 to not be satisfied. Without limiting the foregoing, other than the Approved Distribution, none of the Companies has committed, and prior to the Closing Date shall not make or commit itself, without the written consent of UEC, to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital;
(iv) effect any subdivision, consolidation or reclassification of its share capital;
(v) acquire or have the use of any Material Contract that property from a Person with whom it was Previously Disclosednot dealing with at arm’s length;
(vi) dispose of anything to a Person with whom it was not dealing with at arm’s length for proceeds less than the fair market value thereof; or
(vii) make, commit or confer upon, or pay to or to the benefit of, any entity, any benefit having monetary value, any bonus or any salary increases except in the normal course of its business.
(b) Until the Closing Date, UEC shall, except as otherwise contemplated or permitted by this Agreement, conduct its business in the ordinary course, consistent with past practice, and in accordance with applicable Law and, to the extent possible, in a manner consistent with this Agreement and not, without the prior written consent of the InvestorSelling Stockholders, between enter into any transaction which would cause one or more of the date conditions precedent for the benefit of this Agreement and the ClosingSelling Stockholders set out in Article 6 to not be satisfied.
(c) Until the Closing Date, however, subject to the following, UEC shall be prohibited from effecting or entering into an agreement to effect any issuance by UEC of Common Stock or Common Stock Equivalents (or a combination of units thereof) at an issuance or deemed effective issuance price below the Deemed Issuance Price per Acquisition Share herein. Any such UEC issuance shall include, without limitation, any variable rate transaction (a “Variable Rate Transaction”), which means a transaction in which UEC: (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the Company trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of UEC or the market for the Common Stock; or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby UEC may issue securities at a future determined price. - 43 - Notwithstanding the foregoing, this section 5.2(c) shall not apply in respect of an Exempt Issuance or the pending issuance by UEC at its market price from time to time prior to Closing Date of not greater than 750,000 restricted (not to be registered for resale) shares of Common Stock pursuant to a pending settlement with existing acquisition and service creditors of UEC, except that no Variable Rate Transaction shall be an Exempt Issuance.
(d) Until the Closing Date, AUC shall, except as otherwise contemplated or permitted by this Agreement: (i) cause each of the Real Property and Water Rights owned, held or hereafter acquired by or for AUC and necessary or appropriate to the operation of a mine or mines upon the Real Property to be kept in full force and effect by the payment of whatever sums may become payable and by the fulfillment of whatever other obligations, and the Company performance of whatever other acts may be required to the end that forfeiture or termination of each such interest shall cause each Company Subsidiary to:
(i) use commercially reasonable efforts to conduct its business only be prevented unless the termination, forfeiture or other relinquishment of the interest is authorized by any operating plan or plan of operations then in the ordinary course of businesseffect thereunder; and
(ii) use commercially reasonable efforts conduct all drilling, mining, exploratory work and related operations and activities in accordance with applicable federal, state and local laws and good and minerlike practice; (iii) maintain AUC as the sole owner of, and retain exclusive possession of, all Real Property, free and clear of all liens, subject, in the case of unpatented mining and millsite claims, only to (A) preserve the present business operations, organization (including officers and employees) and goodwill paramount title of the Company United States and any Company Subsidiary Permitted Liens, and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental Entity.
(b) Except as set forth in Section 3.1(b) of the Disclosure Schedule, with the prior written consent of the Investor (which shall not be unreasonably withheld or delayed) or otherwise contemplated by the Transaction Documents, the Company shall and shall cause the Company Subsidiaries to not:
(A) amend its articles of incorporation or bylaws or similar organizational documents;
(B) (1) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (3) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities;
(C) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement;
(D) commence a voluntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or any property subject to the leases, surface use agreements and access agreements, the respective lessors and owners; (iv) timely pay all required federal claim maintenance fees, and timely record and file in the appropriate county and federal offices adequate affidavits and notices of the Company Subsidiariestimely payment of such fees, or any other liquidation or dissolution of the Company or any of the Company Subsidiaries;
(E) terminate, enter into, and amend, modify (including by way of interpretation)relocate, renew or grant any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, and locate new mining claims with respect to non-executive officers or consultants, those unpatented mining claims as reasonably necessary to protect AUC’s interest in the ordinary course Real Property; and (v) timely make all payments and perform all obligations to prevent the forfeiture or termination of business) or make, grant or promise any bonus portion of the Real Property. AUC shall not abandon all or any wageportion of the Real Property or forfeit, salary surrender or compensation increase to release any directorlease, officersublease, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance operating agreement or other employee benefit, incentive agreement or welfare contract (other than with respect to group insurance and welfare employee benefits, in instrument comprising or affecting the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method with respect to Taxes, make, change or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interest, or otherwise encumber or dispose of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) with respect to transactions involving not in excess of $150,000,000 in the aggregate; or
(M) enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoingReal Property without UEC’s consent.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct of Business Prior to Closing. (a) Except as otherwise expressly required by During the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of the Investor, between the date of this Agreement and the ClosingClosing Period, the Company Seller shall, subject to 5.3 and 5.14 cause the Company Corporation to conduct the Business in the Ordinary Course.
(b) Without limiting the generality of Section 5.3(a), the Seller shall and shall cause each Company Subsidiary the Corporation to:
(i) use commercially reasonable efforts Commercially Reasonable Efforts to conduct its preserve intact the current business only organization of the Corporation, keep available the services of the Employees and maintain good relations with, and the goodwill of, suppliers, customers, creditors and all other Persons having business relationships with the Corporation;
(ii) maintain the Assets owned, operated or used in the ordinary course Business in the same condition as they were on the date of businessthis Agreement, subject to reasonable wear and tear;
(iii) maintain insurance coverage commensurate with existing coverage and preserve the confidentiality of any confidential or proprietary information of the Business or the Corporation; and
(iiiv) use commercially reasonable efforts periodically report to (A) preserve the present business operations, organization (including officers Purchaser concerning material matters relating to the Business and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve business relationships with customers, suppliers, consultants and others having business dealings with the Company; provided, however, that nothing in this clause (ii) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable Law or imposed by any Governmental EntityCorporation.
(bc) Except as set forth in Without limiting the generality of Section 3.1(b5.3(a), except: (i) of the Disclosure Schedule, with the prior written consent of each of the Investor (which shall other Party not to be unreasonably withheld withheld; (ii) as required or delayedpermitted by this Agreement; (iii) or otherwise contemplated as required by the Transaction DocumentsLaw, the Company Corporation shall and shall cause the Company Subsidiaries to not, directly or indirectly:
(Ai) amend its articles of incorporation or bylaws or similar organizational constating documents;
(Bii) (1) split, combine or reclassify any shares of its capital stock or declare, set aside or pay any distributions dividend or dividends on, or make any other distributions distribution (whether in cash, securities stock or other propertyproperty or any combination thereof) in respect of, or amend any of its Capital Stock (other than pursuant to Section 3.18); (2) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance term of any other securities in respect ofoutstanding debt security;
(iii) redeem, in lieu of repurchase, or in substitution for Capital Stock otherwise acquire or any of its other securities; or (3) purchaseoffer to redeem, redeem repurchase or otherwise acquire any Capital Stock or any shares of its other securities capital stock or any rights, warrants or options to acquire any such Capital Stock or other securitiesthe capital stock of its subsidiaries;
(Civ) issue, deliver, sell, grantpledge or otherwise encumber, or authorize the issuance, delivery, sale, pledge or otherwise dispose other encumbrance of any shares of its capital stock or encumber any Capital Stock, any other equity or voting securities or any securities convertible into or exchangeable forinterests, or any rightsoptions, warrants or options to acquire, any such Capital Stock, voting securities similar rights exercisable or exchangeable for or convertible into such capital stock or exchangeable other equity or voting interests, or other rights that are linked to the price or the value of the Corporation’s shares;
(v) amend, modify or waive the terms of any of its securities;
(vi) acquire or agree to acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses or make any investment either by the purchase of securities, contribution of capital, property transfer, or purchase of any other property or assets of any other Person, or acquire any license rights, other than any issuance (i) pursuant to a Material Contract in existence on the date hereof or (ii) pursuant to acquisitions in the Ordinary Course not in excess of Common Stock on exercise $100,000 in purchase price;
(vii) sell, pledge, lease, transfer, license, mortgage, encumber or otherwise transfer or dispose of any compensatory stock options outstanding of its assets which in the aggregate exceed $100,000 except for (i) assets which are obsolete and which individually or in the aggregate do not exceed $100,000, or (ii) inventory sold in the Ordinary Course;
(viii) enter into any joint venture or similar agreement, arrangement or relationship;
(ix) make any capital expenditure or commitment to do so which individually or in the aggregate exceeds $100,000;
(x) prepay any obligation outside of the Ordinary Course or prepay long-term indebtedness before its scheduled maturity or increase, create, incur, assume or otherwise become liable for any indebtedness for borrowed money or guarantees thereof in excess of $100,000;
(xi) make any loan or advance to, or any capital contribution or investment in, or assume, guarantee or otherwise become liable with respect to the liabilities or obligations of, any Person other than a wholly-owned subsidiary of the Seller other than in the Ordinary Course;
(xii) reduce the stated capital of any of its securities;
(xiii) reorganize, amalgamate or merge the Corporation or any of the Corporation’s respective subsidiaries or adopt a plan of liquidation or resolution providing for the liquidation or dissolution of the Corporation or any of its respective subsidiaries;
(xiv) grant any Lien (other than Permitted Encumbrances) on any assets of the Corporation;
(xv) enter into any interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or similar financial instruments;
(xvi) repay any advances to related parties;
(xvii) except in the Ordinary Course or as required by the terms of any Employee Plan, make any bonus or profit-sharing distribution or similar payment of any kind;
(xviii) make any change in the Corporation’s accounting methods, principles or practices, except as required by concurrent changes in IFRS or as required by a Governmental Entity or as required by securities filing requirements in connection with the completion of the transactions contemplated by this Agreement;
(xix) grant any general increase in the rate of wages in excess of three percent (3%), of current salaries, bonuses or other remuneration of any Employees;
(xx) except as required by Law, this Agreement or the terms of any Employee Plan: (i) increase any severance, change of control or termination pay (or improvements to notice or pay in lieu of notice) to (or amend any existing arrangement with) any current or former Employee or any current or former director of the Corporation; (ii) increase the benefits payable under any employment agreements with any current or former Employee or any current or former director of the Corporation except in the Ordinary Course; (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any current or former Employee or any current or former director of the Corporation except in the Ordinary Course; (iv) increase compensation, bonus levels or other benefits payable to any current or former Employee or any current or former director of the Corporation except in the Ordinary Course but in no event in excess of three percent (3%); (iv) adopt any new Employee Plan or any amendment or modification of an existing Employee Plan; (vi) increase or agree to increase, any funding obligation or accelerate, or agree to accelerate, the timing of any funding contribution under any Employee Plan; (vii) grant any equity, equity-based or similar awards; or (viii) reduce the Corporation’s work force except in the Ordinary Course;
(xxi) enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Corporation or any successors thereto, or that would, after the Effective Time, limit or restrict in any material respect the Corporation or any of their affiliates from competing in any manner;
(xxii) enter into or amend any Contract with any broker, finder or investment banker;
(xxiii) cancel, waive, release, assign, settle or compromise any material claims or rights of the Corporation;
(xxiv) compromise or settle any litigation, proceeding or governmental investigation relating to the assets or the business of the Corporation in excess of an aggregate amount of $100,000;
(xxv) amend or modify, or terminate or waive any right under, any Material Contract or enter into any contract or agreement that would be a Material Contract if in effect on the date hereof;
(xxvi) knowingly take any action or fail to take any action which action or failure to act would result in the material loss, expiration or surrender of, or the loss of any material benefit under, or reasonably be expected to cause any Governmental Authority to institute proceedings for the suspension, revocation or limitation of rights under, any material Authorizations necessary to conduct its businesses as now conducted or as proposed to be conducted, or fail to prosecute with commercially reasonable due diligence any pending applications to any Governmental Entities for material Authorizations;
(xxvii) enter into, amend or modify any union recognition agreement, collective agreement or similar agreement with any trade union or representative body other than in the Ordinary Course and upon reasonable consultation with the Purchaser;
(xxviii) amend, modify or terminate any material insurance policy of the Corporation in effect on the date of this Agreement;
(Dxxix) commence a voluntary procedure abandon or fail to diligently pursue any ongoing application for reorganizationany material licences, arrangementpermits, adjustmentAuthorizations or registrations;
(xxx) materially change its business or regulatory strategy; or
(xxxi) authorize, relief agree, resolve or composition of indebtedness otherwise commit, whether or bankruptcynot in writing, receivership or a similar proceeding, or consent to the entry of an order for relief in an involuntary procedure for reorganization, arrangement, adjustment, relief or composition of indebtedness or bankruptcy, receivership or a similar proceeding or consent to the appointment of a receiver, liquidator, custodian or trustee, in each case, with respect to the Company or do any of the Company Subsidiariesforegoing.
(d) During the Closing Period, or any other liquidation or dissolution the Seller shall cause the Corporation:
(i) without the consent of the Company Purchaser, which consent shall not unreasonably be withheld or delayed, not to request from any of the Company Subsidiaries;
(E) terminateTax Authority an advance tax ruling or determination, enter into, amend, modify (including by way of interpretation), renew settle or grant compromise any waiver or consent under any employment, offer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to non-executive officers or consultants, in the ordinary course of business) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of consultants, non-executive officers and non-directors in the ordinary course of business) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement (other than, with respect to non-executive officers and non-directors in the ordinary course of business);
(F) terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, (except in the case of non-officers and non-directors, in the ordinary course of business), amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of any equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any non-executive officer employee (and, with respect to such employee, only in the ordinary course of business);
(G) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business;
(H) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of, any other person, except in the ordinary course of business;
(I) implement or adopt any change in its accounting principles, practices or methodologies, other than as may be required by GAAP or applicable accounting requirements of a Governmental Entity;
(J) settle any action, suitaudit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in the ordinary course of business in an amount or for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on the business of the Company or the Company Subsidiaries or, after the Closing, the Investor or any of its Affiliates;
(K) change any material accounting method assessment with respect to Taxes, make, change surrender or revoke any Tax election, prepare any Tax Returns inconsistent in any material respect with past practice, file any amended material Tax Return, consent to any extension or waiver of any statute of limitations with respect to any material Tax claim or assessment relating to the Company or the Company Subsidiaries, enter into any material closing agreement, or surrender forfeit any right to claim a refund of material Taxes;
(L) sell, lease, mortgage, pledge, xxxxx x xxxx or security interestTax refund, or otherwise encumber enter into any agreement or dispose arrangement to provide for an extension of any of its properties or assets, except (1) in the ordinary course of business consistent with past practice, or (2) time with respect to transactions involving not in excess the assessment of $150,000,000 in Tax or the aggregatefiling of any Tax Returns, payment of Tax by, or the levying of any governmental charge against, the Corporation; orand
(Mii) not to make, change or rescind any election relating to Taxes, amend, refile or otherwise modify any Tax Return or take any position on any Tax Return, take any action or omit to take any action or enter into any contract with respect to, other transaction that would have the effect of materially increasing any Tax Liability or otherwise agree or commit to do, materially reducing any Tax asset of the foregoingPurchaser or the Corporation in respect of any Tax period (or portion thereof) that is not a Pre-Closing Tax Period.
Appears in 1 contract
Samples: Share Purchase Agreement (Enthusiast Gaming Holdings Inc. / Canada)
