Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (i) conduct the Business in the Ordinary Course of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, (ii) not, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operations.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sito Mobile, Ltd.), Asset Purchase Agreement (Hipcricket, Inc.)
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except (a) Prior to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied)Closing, Seller shall (i) conduct the Business and affairs only in the Ordinary Course of Business and shall maintain, keep and preserve the Assets in a manner substantially similar good condition and repair (ordinary wear and tear excepted) and maintain insurance thereon in accordance with present practices, and Seller will use commercially reasonable efforts (i) to preserve the manner in which Business and organization of Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Caseintact, (ii) not, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose preserve for the benefit of any Purchaser the goodwill of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors landlords and any others having business relations with whom or with which it has business relationsit, and (viii) not file to cooperate with Purchaser and use commercially reasonable efforts to assist Purchaser in obtaining the consent of any motion landlord or other party to any lease or contract with Seller where the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c)consent of such landlord or other party may be required by reason of the transactions contemplated hereby. Without limiting any Party’s rights or obligations under this Agreementthe generality of the foregoing, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing Seller will not without Purchaser’s prior written approval:
(i) Change its articles of incorporation or other governing documents or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) Enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and described under subparagraph (j) of Section 5.12 above; or
(iii) Perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (A) described in subparagraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (n), or (p) of Section 5.8 of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after October 31, 2001 and prior to the date hereof or (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions described in Section 5.3 of this Agreement, complete control and supervision of its operationsAgreement which would be required to be set forth on Schedule 5.3 hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Mentor on Call Inc), Stock Purchase Agreement
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except (a) Prior to the extent Closing, each of the filing of the Bankruptcy Case Unity and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except Celletra, with respect to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withhelditself, conditioned, delayed or denied), Seller shall (i) conduct the Business its business and affairs only in the Ordinary Course of Business ordinary course in full consultation with the other party on all matters and shall maintain, keep and preserve its assets and properties in a manner substantially similar to the manner good condition and repair and maintain insurance thereon in which Seller has operatedaccordance with present practices, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, and (ii) notuse reasonable commercial efforts to preserve its business and organization intact, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees present officers and agents employees, preserve the goodwill of its suppliers and to maintain its customers and others having business relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c)it. Without limiting any Party’s rights or obligations under the generality of the foregoing, except as contemplated by this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller except in the ordinary course of business, neither of Unity and Celletra will without the prior written approval of the other party:
(i) change its corporate documents (Certificate of Incorporation, Bylaws, or Articles of Association, as applicable) or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and described under Section 8 or Section 9, as applicable, and, with respect to Celletra, except for any agreements regarding the Company's credit line, the engagement with Plenus or other agreements entered in the ordinary course of business after the date hereof in conformity with the covenants and agreements contained herein;
(iii) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type described in Section 8 or Section 9, as applicable, which would have been inconsistent with the representations and warranties set forth therein had the same occurred prior to the date hereof, except for those made in the ordinary course of business after the date hereof in conformity with the covenants and agreements contained herein;
(iv) repay any indebtedness to any person or entity;
(v) make any distributions to any shareholder or stockholder;
(vi) issue any shares or any options or warrants except on conversion of indebtedness as contemplated hereby and except for any issuances made by such party in the ordinary course of business (which includes the issuance of shares upon the exercise of existing options, warrants or conversion rights), and provided that in any such case prior to Closing, an updated representation shall exercise consistent withbe made regarding the share capital structure of such party: or
(vii) expend any cash other than for such party's normal operating activities.
(b) Each party shall give to the other party and its attorneys, accountants and other representatives, upon reasonable notice to such party, full access (so long as it does not interfere with such party's operations), during such party’s regular business hours, to such party’s personnel and all properties, documents, contracts, books and records of such party and will furnish the other party with copies of such documents (certified by such party’s officers if so requested) and with such information with respect to the affairs of such party as the other party may from time to time request, and such other party will not improperly disclose the same prior to the Closing. Any such furnishing of such information to the other party or any investigation by the other party shall not affect the other party's right to rely on any representations and warranties made in this Agreement. Unity and Celletra agree that the existing non-disclosure agreements entered into between the parties shall remain in full force and effect in accordance with their terms until the closing of the Transaction.
(c) Public Disclosure. Prior to the consummation of the Transaction and subject to the terms provisions of this Section, the parties hereto and conditions of their respective insiders (directors, officers and material shareholders) shall not issue statement or communication to the public or press concerning this Agreement, complete control the Transaction or any of the other transactions contemplated by this Agreement, except as provided hereunder. Before a party releases any information concerning this Agreement, the Transaction or any of the other transactions contemplated by this Agreement which is intended for or may result in public dissemination thereof, such party shall cooperate with the other parties, shall furnish drafts of all documents or proposed oral statements to the other parties for comments, and supervision shall not release any such information without the written consent of its operationsthe other parties. Nothing contained herein shall prevent a party hereto from releasing any information if required to do so by law, in which case best efforts to consult with the other parties will be made prior to any such release.
Appears in 2 contracts
Samples: Purchase Agreement (Unity Wireless Corp), Purchase Agreement (Unity Wireless Corp)
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (ia) conduct the Business in the Ordinary Course of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, (ii) not, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior Prior to the Closing, Seller shall exercise conduct its Business and affairs only in the ordinary course and consistent withwith its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and subject Seller and each Stockholder will use their best efforts (i) to preserve the Business and organization of Seller intact, (ii) to keep available to Purchaser the services of Seller's present officers, employees, agents and independent contractors, (iii) to preserve for the benefit of Purchaser the goodwill of Seller's suppliers, customers, landlords and others having business relations with it, (iv) to cooperate with Purchaser and use reasonable efforts to assist Purchaser in obtaining the consent of any landlord or other party to any lease or contract with Seller where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby and (v) to cooperate with Purchaser in its efforts to obtain the financing. Without limiting the generality of the foregoing, prior to the terms Closing Seller will not without Purchaser's prior written approval:
(i) change its certificate of organization or other governing documents or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and conditions described under subparagraph (j) of Section 5.14 above; or
(iii) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (A) described in subparagraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (n), (p) or (q) of Section 5.10 of this AgreementAgreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof or (B) described in Section 5.3 of this Agreement which would be required to be set forth on SCHEDULE 5.3 hereof.
(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 V or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing.
(c) Seller shall, complete control and supervision each Stockholder will cause Seller to, consult with and follow the recommendations of Purchaser with respect to (i) the cancellation of contracts, agreements; commitments or other understandings or arrangements to which Seller is a party, including, without limitation, purchase orders for any item of inventory and commitments for capital expenditures or improvements, (ii) the commencement in one or more of Seller's locations of the orderly and gradual discontinuance of particular items or operations and (iii) purchasing, pricing or selling policy including, without limitation, selling merchandise at discounts; PROVIDED, HOWEVER, that nothing contained in this subsection (c) shall require Seller to take or fail to take any action that, in Seller's reasonable judgment, is likely to give rise to a substantial penalty or a claim for damages by any third party against Seller, or is likely to result in losses or reduced profits to Seller, or is otherwise likely to prejudice in any material respect or unduly interfere with the conduct of Seller's Business and operations in the ordinary course consistent with prior practice, or is likely to result in a breach by Seller of any of its operationsrepresentations, warranties or covenants contained in this Agreement (unless any much breach is first waived in writing by Purchaser).
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except (a) Prior to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied)Closing, Seller shall conduct its business and affairs only in the ordinary course and consistent with its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and Seller and Stockholders will use their best efforts (i) conduct to preserve the Business in the Ordinary Course business and organization of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Caseintact, (ii) notto keep available to ESI the services of Seller's present officers, directly or indirectlyAdministrative Employees, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Businessagents and independent contractors, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any preserve for the benefit of ESI the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account goodwill of Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, 's suppliers, customers, distributors landlords and any others having business relations with whom or with which it has business relationsit, and (viv) not file to cooperate with ESI and use reasonable efforts to assist ESI in obtaining the consent of any motion landlord or other party to any lease or contract with Seller where the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c)consent of such landlord or other party may be required by reason of the transactions contemplated hereby. Without limiting any Party’s rights or obligations under this Agreementthe generality of the foregoing, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller shall exercise consistent withwill not without ESI's prior written approval:
(i) change its certificate or articles of incorporation or by-laws or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any material contract, and subject agreement, commitment or other understanding or arrangement; or
(iii) perform, take any action or incur or permit to exist any or the terms and conditions acts, transactions, events or occurrences of the type (1) described in Section 5(1) of this Agreement, complete control which would have been inconsistent with the representations and supervision warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof, or (2) described in Section 5(e) of this Agreement, which would be required to be set forth on Schedule 5(e) hereof if it had taken place during the past three years.
(b) Seller or ESI, as appropriate, shall give the other prompt written notice of any change in any of the information contained in the representations and warranties made in Section 5, Section 6 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing.
(c) Seller will consult with and follow the recommendations of ESI with respect to (i) the cancellation of contracts, agreements, commitments or other understandings or arrangements to which Seller is a party, including, without limitation, purchase orders for any item of inventory and commitments for capital expenditures or improvements, (ii) the commencement in one or more of Seller's locations of the orderly and gradual discontinuance of particular items or operations and (iii) purchasing, pricing or selling policy; provided, however, that nothing contained in this Section 7(c) shall require Seller to take or fail to take any action that, in Seller's reasonable judgment, is likely to give rise to a substantial penalty or a claim for damages by any third party against Seller, or is likely to result in losses or reduced profits to Seller, or is otherwise likely to prejudice in any material respect or unduly interfere with the conduct of Seller's business and operations in the ordinary course consistent with prior -28- practice, or is likely to result in a breach by Seller of any of its operationsrepresentations, warranties or covenants contained in this Agreement (unless any such breach is first waived in writing by ESI).
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c)At all times prior to ------------------------------------ the Closing Date, except the Company shall:
(a) operate its business only in the ordinary course and consistent with past practice;
(b) use its best efforts to preserve its business organization intact, to keep available to the extent Buyer the services of its present officers and employees and to preserve for the filing Buyer the good will of customers, suppliers and others having business relations with the Bankruptcy Case Company;
(c) maintain its equipment and thereafter as expressly required under the Bankruptcy Code machinery in good repair and operating condition, ordinary wear and tear excepted;
(d) maintain in full force and effect all Company's permits and insurance policies;
(e) not enter into any contract or other applicable Law or any ruling or order of the Bankruptcy Court and/or commitment except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (i) conduct the Business those made in the Ordinary Course ordinary course of Business and in a manner substantially similar to business the manner in terms of which Seller has operated, are consistent with past practice and reasonable in light of current conditions;
(including with respect to f) not terminate, cause the payment of accounts payable of Seller)termination of, taking into account Seller’s status as a debtor-in-possession amend, renew or extend any Company Agreement unless in each case such action is in the Bankruptcy Casebest interest of the Company;
(g) not waive or release any of its rights or permit any of its rights to lapse;
(h) not sell, (ii) not, directly or indirectly, sell transfer or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly its assets or indirectly, permit, offer, any interest therein or agree or commit to permit, do any of the Acquired Assets foregoing, except for sales of inventory in the ordinary course of business;
(i) not incur, make, assume or suffer to become subject, directly or indirectly, to exist any Lien, Claimtenancy or other matter affecting title to any of its assets;
(j) not make, Interest change or Encumbrance, except for Permitted Liensrevoke any tax election or make any agreement or settlement with any taxing authority;
(k) not merge or consolidate the Company with or into any other entity or agree to do any of the foregoing;
(l) not incur any indebtedness other than trade payables incurred in the ordinary course of business, and not guarantee any indebtedness or other obligations of any other Person;
(m) not grant or commit itself to grant any salary or wage increases to any of its employees, and not pay bonuses other than pursuant in accordance with its normal practice;
(n) not make or commit itself to make any capital expenditures in excess of US$150,000, exclusive of the DIP Financing, Tele8 Transaction;
(ivo) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services not issue or sell any of its current employees capital stock or other securities, not declare or pay any dividends or other distributions in respect of any of its capital stock and agents and not agree to maintain its relations and goodwill do any of the foregoing;
(p) comply with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relationsapplicable Governmental Rules in all material respects;
(q) take no action, and use its best efforts to prevent the occurrence of any event or the existence of any condition, which would result in any of the Company's representations and warranties herein not being true and correct; and
(vr) not file promptly inform the Buyer of the occurrence of any motion event or the existence of any condition which constitutes or, with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights giving of notice or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations passage of Sellertime, or the Business prior both, is likely to the Closing and (B) prior to the Closingconstitute, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operationsa Material Adverse Change.
Appears in 1 contract
Samples: Stock Purchase Agreement (Facilicom International Inc)
Conduct of Business Prior to Closing. Except (1) During the Interim Period, and except (a) as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except to the extent set forth in Section 5.1 of the filing of Disclosure Letter, (b) with the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, delayed (c) as required in connection with any of the Regulatory Approvals, (d) as necessary to comply with the Consent Agreement, or denied)(e) as required by Law or as otherwise expressly set forth in this Agreement, the Seller shall (i) conduct the Business in the Ordinary Course of Course. Without limiting the generality of, and subject to, the foregoing, during the Interim Period, the Seller shall:
(a) use all commercially reasonable efforts to preserve intact the Business and Purchased Assets including the goodwill of suppliers, customers, Employees and others having business relations with the Seller in a manner substantially similar relation to the manner in which Business. Without limiting the generality of the foregoing, the Seller has operatedshall not, consistent with past and the Seller shall not permit any of its Subsidiaries to, directly or indirectly (i) induce or attempt to induce any customer of the Business to modify such customer’s practice of purchasing newsprint or pulp that is produced at the Mill, and (ii) reallocate any customer order initially allocated to the Mill to any other business or mill owned or operated by the Seller or any of its Affiliates to the detriment of the Mill, provided however, that nothing shall prevent the Seller or any of its Affiliates from satisfying any newsprint or pulp orders from any other business or mill owned or operated by the Seller or any of its Affiliates if it can be reasonably demonstrated that such order did not result from any breach by the Seller of clause (i) or clause (ii) of this Section 5.1(1)(a) (including if it can be reasonably demonstrated that a request or order originated from a customer rather than the Seller or any of its Affiliates);
(b) use commercially reasonable efforts to maintain in full force and effect Seller’s rights in the Business Intellectual Property Rights;
(c) maintain in full force and effect the Insurance Policy;
(d) comply with respect Laws in all material respects in connection with the operation of the Business and the Purchased Assets, and promptly notify the Purchaser of, and provide the Purchaser with complete and accurate copies of any written materials relating to:
(i) any Orders rendered against the Seller or one of its Affiliates and affecting the Purchased Assets or the Business; and
(ii) any actual or alleged failure by the Seller or one of its Affiliates to comply in all material respects with applicable Laws applicable to the payment conduct of accounts payable the Business and the ownership or use of Seller), taking into account Seller’s status as a debtor-in-possession any of the Purchased Assets
(e) pay and discharge the liabilities of the Seller relating to the Business in the Bankruptcy CaseOrdinary Course, except those contested in good faith by the Seller;
(f) (i) not amend or modify in any material respect, or grant any waiver of any material right under, any Material Contract, (ii) notnot amend or modify in any material respect, or grant any waiver of any material right under, any Contract listed in Part B of Section 2.1(1)(i) of the Disclosure Letter which would reasonably be expected to have a materially disproportionate effect on the Business relative to other businesses conducted by the Seller or its Affiliates, (iii) terminate (in whole or in part) any Material Contract (provided for greater certainty that the termination of a Material Contract by the expiration of its term or by a party other than the Seller or one of its Affiliates shall not be a breach of this clause (iii)); (iv) terminate (in whole or in part) any Contract listed in Part B of Section 2.1(1)(i) of the Disclosure Letter where such termination would have a materially disproportionate effect on the Business relative to other businesses conducted by the Seller or its Affiliates (provided for greater certainty that the termination of a Multi-Mill Contract by the expiration of its term or by a party other than the Seller or one of its Affiliates shall not be a breach of this clause (iv)); (v) not enter into any Contract, whether written or oral, that would fall within the scope of the definition of Material Contract hereunder without the prior written consent of the Purchaser (which consent shall not be not unreasonably withheld, delayed or conditioned and if Purchaser does not respond to Seller within two (2) Business Days following request hereunder, such consent shall be deemed to have been given by Purchaser), and (iv) not take the actions specified in Section 5.1(1)(f)(iv) of the Disclosure Letter.
(g) not delay or postpone, in a way which would be outside of the Ordinary Course, any maintenance or capital expenditures required to maintain the material tangible assets included in the Purchased Assets in a condition and state of repair adequate for their current uses by the Business;
(h) use commercially reasonable efforts to operate in the Ordinary Course of the Business in order to ensure that the Annual Outage can occur as scheduled, including by not delaying or postponing (y) the taking of any action, or (z) the incurring of any budgeted cost, in each case, outside of the Ordinary Course, to the extent that such action or cost is reasonably required for the Annual Outage to occur as scheduled;
(i) except in the Ordinary Course, not make any change to the credit terms offered to customers of, or by suppliers to, the Business;
(j) not sell, lease, license or otherwise dispose of or grant any Person any rights in any of the Purchased Assets, or remove any Purchased Assets from the Owned Real Property or the Leased Real Property other than for (A) sales of inventory to customers or to Affiliates in the Ordinary Course of the Business; (B) disposition of surplus, obsolete, damaged or destroyed assets in the Ordinary Course; (C) returns of leased assets at the expiration of the term of the lease for such assets or when such leased assets are no longer used or usable; or (D) Permitted Liens.
(k) create or permit the creation of any Liens on any of the Purchased Assets, except for Permitted Liens; or
(l) authorize or commit to take any of the actions in the foregoing clauses (f), (g), (i), (j) or (k).
(2) For greater certainty, all profit and loss of the Seller during the Interim Period shall belong to the Seller. Nothing herein shall be construed to (a) prohibit the Seller from using or distributing to the Seller’s direct or indirect shareholders all cash and cash equivalents of the Business at any time and from time to time prior to Closing, or (b) give the Purchaser, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) any right to sell or otherwise transfer or dispose of any materially influence the economic behavior of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly Business or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and Closing.
(B3) prior Notwithstanding anything to the Closingcontrary in this Section 5.1, Seller the Parties agree that the provisions set forth in Section 5.1(3) of the Disclosure Letter shall exercise consistent with, and subject to govern the terms and conditions of this Agreement, complete control and supervision of its operationsmatters set forth therein during the Interim Period.
Appears in 1 contract
Conduct of Business Prior to Closing. Except From the date hereof until the earlier of (x) the termination of this Agreement or (y) the Closing, except as (i) expressly contemplated by this Agreement or disclosed on Schedule 6.1(c)Agreement, except (ii) consented to in writing by the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written Buyer (which consent (such consent shall not to be unreasonably withheld, conditioned, delayed conditioned or denieddelayed), (iii) otherwise contemplated by the Pre-Closing Restructuring or as set forth on Schedule 6.01 of the Company Disclosure Schedule, (iv) required by Law or any actions taken, or omitted, in response to COVID-19 or COVID-19 Measures, so long as the Seller consults with the Buyer regarding such actions or omissions and considers the reasonable requests of the Buyer with respect to such actions or omissions or (v) solely relating (and solely to the extent relating) to Parent’s businesses other than the Business (clauses (i) to (iv) collectively, the “IOC Exceptions”), the Seller shall, and shall cause the Company and the Company Subsidiaries to: (i) conduct the Business in the Ordinary Course ordinary course of business in all material respects; and (ii) use commercially reasonable efforts to maintain and preserve intact the Business and the current organization and franchise of the Company and the Company Subsidiaries and to preserve the rights, franchises, goodwill and relationships of its material clients, vendors and others having material business relationships with the Company, the Company Subsidiaries or the Business. Without limiting the generality of the foregoing, from the date hereof until the earlier of (x) the termination of this Agreement or (y) the Closing Date, except as permitted by the IOC Exceptions, the Seller shall not, and shall cause each of its Subsidiaries (including the Company and the Company Subsidiaries) not to (in a manner substantially similar each case, solely with respect to the manner Business):
(a) (i) assign, sell (or agree to sell), transfer, convey, lease, license, abandon, permit to lapse, place in which the public domain or otherwise dispose of any material Company IP other than non-exclusive licenses of Company IP in the ordinary course of business, or (ii) mortgage, encumber or create or otherwise incur any Lien on any property or assets other than Permitted Liens;
(b) except as required by the terms of any Employee Benefit Plan or as required by Law, (i) increase the compensation of any of the Company or any Company Subsidiary’s employees or other service providers or any Business Employees; (ii) adopt or amend any Employee Benefit Plan (except pursuant to an action that applies uniformly to employees of the Company and Company Subsidiaries and to other similarly situated employees of Seller has operatedand its Affiliates); (iii) take any action to accelerate the vesting of, or payment of, any compensation or benefit under any Employee Benefit Plan; (iv) other than in the ordinary course outside of the United States, enter into any employment or similar agreement with any employee or other service provider of the Company; or (v) grant any retention, severance (other than in the ordinary course, consistent with past practice (including with respect practices previously disclosed to the payment of accounts payable of SellerBuyer), taking into account Seller’s status as a debtor-in-possession or change in control compensation, or commit to pay such compensation to, any employee, director, officer, or independent contractor of the Company and the Company Subsidiaries or to any Business Employee;
(c) except in the Bankruptcy Caseordinary course of business consistent with past practice, hire, promote, terminate (iiother than for cause) notor transfer to or out of the Company or the Company Subsidiaries, the employment or services of any director or employee of the Company, a Company Subsidiary or who otherwise constitutes a Business Employee who is the position of Vice President or above or any other employee or service provider whose annual base compensation exceeds, or would exceed following the hiring or promotion of such individual, $100,000 per annum;
(d) enter into any Contract with any labor union, works council or collective bargaining agreement to which the Company or any Company Subsidiary is a party, other than as required by Law;
(e) modify, amend, terminate, cancel or renew, or agree to any waiver under, any of the Material Contracts, or enter into or amend any Contract that, if existing on the date hereof, would be a Material Contract;
(f) make any change to its accounting methods, principles or practices, except as may be required by applicable Law;
(g) make any amendment or change to the Company or any Company Subsidiary’s certificate of incorporation or bylaws or similar organizational documents;
(h) redeem, repurchase or otherwise acquire, directly or indirectly, sell any shares of capital stock or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any other equity interests of the Acquired Assets, except in the Ordinary Course of Business, Company or any Company Subsidiary;
(iiii) not, directly declare or indirectly, permit, offer, agree pay any dividends or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, distributions to any Lien, Claim, Interest Person (other than to the Company or Encumbrancea Company Subsidiary), except for Permitted Liens, the declaration and other than pursuant to payment by the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services Company or any Company Subsidiary of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom cash dividend or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business distribution prior to the Closing Date;
(j) issue, deliver, pledge, sell dispose of or encumber any capital stock or other equity interests, or securities convertible into or exchangeable for capital stock or other equity interests, or options, warrants, calls, subscriptions or other rights to purchase any capital stock or other equity interests of the Company or the Company Subsidiaries or reclassify, split, combine or subdivide the capital stock or other equity interests of the Company or the Company Subsidiaries;
(k) commence, settle or compromise, or propose to settle or compromise any lawsuit, dispute or other Action involving the Company, the Company Subsidiaries or any of their respective directors, managers or officers (in their capacities as such), other than settlements or compromises of any lawsuit, dispute or other proceeding in the ordinary course of business where (x) the amount paid in settlement or compromise does not exceed $100,000 individually or $250,000 in the aggregate (excluding any amounts covered by insurance or paid by the Parent Group), (y) such payment is made in exchange for a release of claims on behalf of the Company, the Company Subsidiaries or their respective directors, managers or officers (in such capacity), as applicable, and involves no admission of liability on behalf of such Persons, and (Bz) prior such settlement or compromise does not involve the assumption of any obligations (financial or otherwise) by the Company Group other than the payment referenced in clause (x) (it being agreed and understood that this clause (k) shall not apply with respect to Tax matters, which shall be governed by Section 6.01(k));
(l) make, change or revoke any material Tax election; settle or compromise with any Governmental Authority any claim or assessment in respect of material Taxes; change any annual Tax accounting period, adopt or change any material method of Tax accounting; file any amended material Tax Return; enter into any material Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax (excluding, in each case, any agreements the principle purpose of which is not to address Tax matters); fail to pay any material Tax due and payable; surrender any right to claim a material Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(m) make any loans, advances or capital contributions to, or investments in, any Person, or otherwise incur any third party Indebtedness for borrowed money (other than trade accounts payable incurred in the ordinary course of business consistent with past practice, short-term working capital financing and intercompany Indebtedness between the Company and Company Subsidiaries);
(n) forgive, cancel or compromise any Indebtedness for borrowed money or claim, or waive or release any right of value;
(o) manage payables, receivables or working capital, other than in the ordinary course of business;
(p) except as set forth in the capital budget made available to the Buyer, make any capital expenditures or incur any obligations or commitments to make any capital expenditures following the Closing;
(q) make or agree to make any write-off or write-down, Seller shall exercise consistent withor any determination to write-off or write-down, or revalue any assets of the Company or the Company Subsidiaries, other than write-downs in the ordinary course of business, and subject except in each case as required by GAAP; or
(r) agree to take any of the terms and conditions of this Agreement, complete control and supervision of its operationsactions described in sub-clauses (a) through (q) above.
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except (a) Prior to the extent Closing, each of the filing of the Bankruptcy Case Unity and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except Celletra, with respect to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withhelditself, conditioned, delayed or denied), Seller shall (i) conduct the Business its business and affairs only in the Ordinary Course of Business ordinary course in full consultation with the other party on all matters and shall maintain, keep and preserve its assets and properties in a manner substantially similar to the manner good condition and repair and maintain insurance thereon in which Seller has operatedaccordance with present practices, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, and (ii) notuse reasonable commercial efforts to preserve its business and organization intact, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees present officers and agents employees, preserve the goodwill of its suppliers and to maintain its customers and others having business relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c)it. Without limiting any Party’s rights or obligations under the generality of the foregoing, except as contemplated by this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller except in the ordinary course of business, neither of Unity and Celletra will without the prior written approval of the other party:
(i) change its corporate documents (Certificate of Incorporation, Bylaws, or Articles of Association, as applicable) or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and described under Section 8 or Section 9, as applicable, and, with respect to Celletra, except for any agreements regarding the Company's credit line, the engagement with Plenus or other agreements entered in the ordinary course of business after the date hereof in conformity with the covenants and agreements contained herein;
(iv) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type described in Section 8 or Section 9, as applicable, which would have been inconsistent with the representations and warranties set forth therein had the same occurred prior to the date hereof, except for those made in the ordinary course of business after the date hereof in conformity with the covenants and agreements contained herein;
(v) repay any indebtedness to any person or entity;
(vi) make any distributions to any shareholder or stockholder;
(vii) issue any shares or any options or warrants except on conversion of indebtedness as contemplated hereby and except for any issuances made by such party in the ordinary course of business (which includes the issuance of shares upon the exercise of existing options, warrants or conversion rights), and provided that in any such case prior to Closing, an updated representation shall exercise consistent withbe made regarding the share capital structure of such party: or
(viii) expend any cash other than for such party's normal operating activities.
(b) Each party shall give to the other party and its attorneys, accountants and other representatives, upon reasonable notice to such party, full access (so long as it does not interfere with such party's operations), during such party’s regular business hours, to such party’s personnel and all properties, documents, contracts, books and records of such party and will furnish the other party with copies of such documents (certified by such party’s officers if so requested) and with such information with respect to the affairs of such party as the other party may from time to time request, and such other party will not improperly disclose the same prior to the Closing. Any such furnishing of such information to the other party or any investigation by the other party shall not affect the other party's right to rely on any representations and warranties made in this Agreement. Unity and Celletra agree that the existing non-disclosure agreements entered into between the parties shall remain in full force and effect in accordance with their terms until the closing of the Transaction.
(c) Public Disclosure. Prior to the consummation of the Transaction and subject to the terms provisions of this Section, the parties hereto and conditions of their respective insiders (directors, officers and material shareholders) shall not issue statement or communication to the public or press concerning this Agreement, complete control the Transaction or any of the other transactions contemplated by this Agreement, except as provided hereunder. Before a party releases any information concerning this Agreement, the Transaction or any of the other transactions contemplated by this Agreement which is intended for or may result in public dissemination thereof, such party shall cooperate with the other parties, shall furnish drafts of all documents or proposed oral statements to the other parties for comments, and supervision shall not release any such information without the written consent of its operationsthe other parties. Nothing contained herein shall prevent a party hereto from releasing any information if required to do so by law, in which case best efforts to consult with the other parties will be made prior to any such release.
Appears in 1 contract
Conduct of Business Prior to Closing. Except (a) Prior to the Closing, Sellers will use their best efforts to cause Teletrade to conduct its business and affairs only in the ordinary course and consistent with its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and Teletrade and Sellers will use their best efforts (i) to preserve the business and organization of Teletrade intact, (ii) to keep available to Purchaser the services of the present officers, employees, agents and independent contractors of Teletrade (other than Sellers), (iii) to preserve for the benefit of Purchaser the goodwill of consignors, clients, suppliers, customers, landlords and others having business relations with Teletrade, (iv) to cooperate with Purchaser and to assist Purchaser in obtaining the consent of any landlord or other party to any lease or contract with Teletrade where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby. Without limiting the generality of the foregoing, prior to the Closing, without Purchaser's prior written approval, Sellers will not, and will use their best efforts to cause Teletrade not to:
(i) change its certificate of incorporation or by-laws or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and described under subparagraph (j) of Section 6.14 hereof;
(iii) adopt any new plan or arrangement for the benefit of any employee of Teletrade or amend any Benefit Plan or arrangement maintained by Teletrade other than amendments (x) required to be made under applicable laws or regulations or (y) as expressly contemplated under the terms of this Agreement;
(iv) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (1) described in subparagraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (n), (p), (q), (r), (s), (t) or (u) of Section 6.10 hereof which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof, or (2) described in Section 6.4 hereof which would be required to be set forth on Schedule 6.4 if it had taken place during the past three years; provided, however, that distributions may be made to each Seller, in accordance with Teletrade's past practice, to permit him to pay his income tax liabilities with respect to his allocable share of Teletrade's income for the S Short Year (as defined in Section 10.3 of this Agreement); provided, however, that such distributions (together with any prior distributions to Sellers during the S Short Year) shall not exceed 43.7% of Teletrade's taxable income for the S Short Year.
(v) grant any increase in the compensation, commissions or bonus opportunities payable to or to become payable to any employee of Teletrade, excluding any increases in the ordinary course of business consistent with past practice;
(vi) enter into any new compensation arrangement with any director, officer or employee or pay or agree to pay any pension, retirement allowance or other employee benefit to any director, officer or employee (whether past or present) or declare, approve or make any deposit into or contribution or payment to any benefit plan, other than such amounts as may be contributed in the normal course of business or which are necessary in order to comply with applicable law; or
(vii) increase the regularly scheduled hours per week for any employee.
(b) Sellers shall give Purchaser prompt written notice of any material change in any of the information contained in the representations and warranties made in Section 6 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing; provided, however, that neither the supplementing or amending of any Schedules by Sellers or Teletrade, nor the discovery of any matters by Purchaser in the course of its investigations, shall be deemed to cure any breach of representation or warranty made in this Agreement, to have been disclosed as of the date of this Agreement or to constitute any waiver by Purchaser of any of its rights hereunder, except that if Purchaser chooses to close the purchase transaction contemplated by this Agreement notwithstanding such supplement or amendment or discovery of such matter, then such representations and warranties or such Schedules shall be deemed to have been as so supplemented or amended for all purposes of this Agreement and Purchaser may not thereafter pursue any claim for indemnification by reason of the information disclosed on Schedule 6.1(c), except in such supplement or amendment.
(c) Subject to the extent terms and conditions herein provided, each of the filing parties hereto agrees to use their respective best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement.
(d) In the event that during the period between the date hereof and the Closing Date, all or any portion of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code properties of Teletrade is damaged by fire or other applicable Law or any ruling or order casualty, Sellers shall promptly give notice thereof to Purchaser. If such damage in the aggregate materially affects the ability of the Bankruptcy Court and/or except Teletrade at Closing to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (i) conduct the Business as contemplated herein, Purchaser shall have the right to terminate this Agreement. In such event, all parties shall be released from all liability hereunder except as otherwise provided in this Agreement.
(e) From the Ordinary Course date hereof through the earlier of Business and in a manner substantially similar the Closing or the termination of this Agreement, none of Sellers, Teletrade, any of their respective affiliates nor any of the officers, directors, employees, representatives or agents of, or professional advisors to (collectively, the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller"Representatives"), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy CaseSellers, (ii) notTeletrade or any of their respective affiliates, shall, directly or indirectly, sell solicit, initiate, participate in discussions with, provide any information or otherwise transfer assistance to (including, but not limited to, affording access to the properties, books and records of Teletrade) or dispose, enter into any agreement with any person or offer, agree or commit group of persons (in writing or otherwiseother than Purchaser) to sell or otherwise transfer or dispose of concerning any of the Acquired Assets, except in the Ordinary Course of Business, (iii) nottransaction that would result, directly or indirectly, permit, offer, agree or commit to permit, any of in the Acquired Assets to become subject, directly or indirectly, transfer to any Lien, Claim, Interest such person or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact persons of control of any properties or assets of Teletrade or the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operations.
Appears in 1 contract
Samples: Stock Purchase Agreement (Greg Manning Auctions Inc)
Conduct of Business Prior to Closing. (a) Except as expressly required by any law or any agreements or arrangements disclosed in the Data Room, as contemplated by this Agreement or disclosed on Schedule in connection with the transactions contemplated hereby or as Purchaser may otherwise consent to in writing (which consent shall not be unreasonably withheld or delayed), from the date hereof until the Closing Date, Seller will take all action available to it in its capacity as sole shareholder of the Company to cause each Group Company to operate its business in the ordinary course in all material respects.
(b) Without limiting the generality of the foregoing Section 6.1(a) and subject to Section 6.1(c), except from the date hereof until the Closing Date, Seller will take all action available to the extent it in its capacity as sole shareholder of the filing of the Bankruptcy Case and thereafter Company to cause each Group Company not to, except as expressly required under the Bankruptcy Code or other applicable by any Law or any ruling agreements or order arrangements entered into in the ordinary course of business and disclosed in the Bankruptcy Court and/or except Data Room, as contemplated by this Agreement or in connection with the transactions contemplated hereby (including Permitted Leakage) or as Purchaser may otherwise consent to the extent waived by Buyer’s prior written in writing (which consent (such consent shall not to be unreasonably withheld, conditioned, delayed withheld or denied), Seller shall delayed):
(i) conduct the Business (A) adopt any material change in the Ordinary Course its Constitutional Documents, (B) declare or pay out dividends, (C) allot, issue, redeem or repurchase any shares of Business and any Group Company other than to or from another Group Company, (D) merge or consolidate a Group Company with any other Person other than another Group Company or in a manner substantially similar connection with an acquisition that is not restricted pursuant to the manner subsection (iii) below, or (E) create or issue any share capital or option in which Seller has operatedrespect of any shares of any Group Company, consistent with past practice (including with respect other than to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, another Group Company;
(ii) not, directly or indirectly, sell or otherwise transfer or disposematerially increase the Group’s aggregate payroll expenses, or offerpay or agree to pay any bonus or other incentives or severance compensation or grant any employee benefits in kind or in cash or make any extraordinary payment to employees, agree including managing directors or commit similar executive officers, except (A) as required under written agreements existing as of the date hereof or (B) in writing or otherwisethe ordinary course of business (which shall include annual payroll increases similar to past practices of the Group and aggregate payroll increases in connection with additional employee hiring similar to past practices of the Group);
(iii) to sell or otherwise transfer acquire or dispose of any of the Acquired Assetsrevenues, except assets, business or undertakings, or make capital expenditures, or incur commitments involving capital expenditures, other than (A) to maintain current assets and operations in the Ordinary Course ordinary course of Businessbusiness, (iiiB) notin the case of acquisitions, directly disposals, capital expenditures or indirectly, permit, offer, agree commitments involving capital expenditures in an amount not exceeding Euro 7,000,000 in the aggregate per annum or commit to permit, any of (C) in connection with the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, projects listed in SCHEDULE G; (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Caseincur, preserve intact the Business, assume or guarantee any indebtedness for borrowed money to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that third party other than (A) nothing contained in this Agreement shall give Buyerthe ordinary course of business, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to in amounts not exceeding Euro 1,500,000 in the Closingaggregate per annum, Seller shall exercise consistent with, and subject to or (C) indebtedness incurred under the terms and conditions of this Agreement, complete control and supervision of its operations.Existing Facilities;
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except Prior to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code Closing Date or other applicable Law or any ruling or order of than in accordance with the Bankruptcy Court and/or except Management Agreement, Rapid Link shall, and shall cause its Subsidiaries (that hold Telenational Assets) to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (i) conduct the Core Business in the Ordinary Course ordinary course of Business business and in a manner substantially similar to the reasonable and prudent manner in which Seller has operated, consistent accordance with its past practice (including with respect to business practices under the payment supervision of accounts payable the Board of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy CaseDirectors, (ii) notnot acquire, directly or indirectlysell, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of or subject to any Encumbrance any of the Acquired Assetsmaterial assets of the Core Business, except in the Ordinary Course ordinary course of Businessbusiness, (iii) notmaintain the tangible assets in their present condition, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, ordinary wear and other than pursuant to the DIP Financingtear excepted, (iv) taking into account Seller’s status as a debtor-in-possession not increase the compensation or benefits of any employees or independent contractors of the Core Business (other than in the Bankruptcy Caseordinary course of business), preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file declare or pay any motion with dividends or other distributions to the Bankruptcy Court to take shareholders of Rapid Link, (vi) not enter into any action inconsistent with this Agreement includingnew or modify any existing material agreements other than (A) in the ordinary course of business, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under (B) as otherwise contemplated by this Agreement, (C) in a manner patently favorable to Rapid Link (e.g., reduction in the Parties understand interest rate of a loan) or (D) with Blackbird’s prior written consent which may not be unreasonably withheld or delayed, (vii) use reasonable efforts to preserve its existing relations with its employees, customers, suppliers and agree that others with whom it has a business relationship, (Aviii) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Sellernot establish any new, or fundamentally alter any existing, employee plans, (ix) not incur any material debt, (x) except in connection with the Business prior to the Closing debt conversions contemplated by this letter agreement, not issue any additional shares of Rapid Link Common Stock or Derivative Securities, and (Bxi) not defer the payment of any accounts payable in a manner that varies from past practices within the last 60 days without the prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions written consent of this Agreement, complete control and supervision of its operationsBlackbird.
Appears in 1 contract
Conduct of Business Prior to Closing. (a) Except (i) as otherwise expressly contemplated by this Agreement provided, permitted or disclosed required herein, (ii) as set forth on Schedule 6.1(c)5.1, except (iii) reasonable action to the extent of the filing of the Bankruptcy Case and thereafter as expressly required (a) comply with requirements under the Bankruptcy Code or other applicable Law or (b) protect human health and safety or respond to COVID-19 Pandemic or the direct or indirect effects thereof (including any ruling COVID-19 Measures), or order (iv) as consented to in writing by Buyer (including via email), which consent shall not be unreasonably withheld, conditioned or delayed, during the period commencing on the date of this Agreement and ending at the Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing Period”), the Company and each of its Subsidiaries shall use its commercially reasonable efforts to carry on its business in the ordinary course of business in all material respects; provided, that, (i) the Company or any of its Subsidiaries may use all available cash to pay any Company Transaction Expenses or Company Debt prior to the Closing, for distributions or dividends or for any other purpose, (ii) the Company or any of its Subsidiaries may enter into or pay any bonus arrangements with employees of the Bankruptcy Court and/or except Company or its Subsidiaries so long as such bonuses are included in the calculation of Company Transaction Expenses or paid prior to the extent waived Closing and (iii) the Company’s or any of its Subsidiaries’ failure to take any action prohibited by Buyer’s Section 5.1(b) will not be a breach of this of Section 5.1(a).
(b) Except (i) as otherwise expressly provided, permitted or required herein, (ii) as set forth on Schedule 5.1, or (iii) reasonable action to (a) comply with requirements under applicable Law or (b) protect human health and safety or respond to COVID-19 Pandemic or the direct or indirect effects thereof (including any COVID-19 Measures), without the prior written consent (such including via email) of Buyer, which consent shall not to be unreasonably withheld, conditionedconditioned or delayed, delayed during the Pre-Closing Period, the Company shall use its commercially reasonable efforts to not intentionally, and shall use its commercially reasonable efforts to not intentionally permit any of its Subsidiaries to, directly or denied)indirectly, Seller shall do any of the following (in each case, excluding transactions, events or other occurrences between the Company and any of its Subsidiaries or between the Company’s Subsidiaries):
(i) conduct split, combine or reclassify, assign, pledge, issue, sell, or authorize or propose the Business split, combination, reclassification, assignment, pledge, issuance or sale of (A) any equity interests of the Company or any of its Subsidiaries, or securities convertible into or exchangeable for any such equity interests, or any rights, warrants or options to acquire any such equity interest or other convertible securities of the Company or any of its subsidiaries or (B) any other securities in respect of, in lieu of, or in substation for any equity interests of the Company or any of its Subsidiaries outstanding on the date hereof, in each case, other than in connection with the vesting, cancellation or exercise of Options or Company RSUs;
(ii) declare, set aside, make or pay any dividend or other distribution in respect of any equity interests of the Company or any of its Subsidiaries (other than dividends or distributions made in cash prior to the Closing);
(iii) redeem, purchase or otherwise acquire any outstanding equity interests of the Company or any of its Subsidiaries, other than in connection with the cessation of employment in the Ordinary Course ordinary course of Business and in a manner substantially similar business;
(iv) make any change to the certificate of incorporation, bylaws, certificate of formation, limited liability company agreement or other organizational documents of the Company and its Subsidiaries;
(v) knowingly waive, release or assign any material rights or claims (including any material write-off or other material compromise of any accounts receivable of the Company or any of its Subsidiaries) other than in the ordinary course of business;
(vi) change accounting policies or procedures, except as required by GAAP; make or change any material Tax election, file any material amended Tax Return, change any accounting period, settle any material Tax claim or assessment relating to the Company or its Subsidiaries, enter into any closing agreement with respect to a material amount of Taxes or consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment;
(vii) (i) increase in any material manner the compensation or benefits of any of its directors, officers or employees, except as may be required under existing employment agreements or such increases as are granted in the ordinary course of business and which Seller has operated, are consistent with past practice (including with respect to the payment of accounts payable of Sellerordinary course salary increases and bonus payments), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, (ii) notpay or agree to pay any pension, directly retirement allowance or indirectlyother employee benefit not contemplated by any Employee Benefit Program to any director, sell officer or otherwise transfer employee, whether past or disposepresent, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except other than in the Ordinary Course ordinary course of Businessbusiness, (iii) notenter into, directly adopt or indirectlymaterially amend any Employee Benefit Program or adopt any employee benefit plan, permitother than in the ordinary course of business, offer(iv) grant or increase any severance, agree retention or commit termination pay to permitany current or former director, officer or employee, or increase benefits payable under any existing severance or termination pay policies, or (v) terminate the employment of any employee listed on Schedule C, other than for cause;
(viii) sell, lease, pledge or otherwise dispose of any material properties or material assets of the Company or any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbranceits Subsidiaries, except for Permitted Liens, assignments and/or transfers of assets between the Company and its Subsidiaries and sales or other transactions in the ordinary course of business;
(ix) enter into any merger, consolidation, recapitalization or other business combination or make any other acquisition of any business;
(x) except as specifically provided in this Agreement, materially amend or terminate (except in the event the term thereof ends or termination for breach by the counterparty) any Significant Contract to which the Company or any of its Subsidiaries is party; provided, however, that the foregoing shall in no event prohibit the Company or any of its Subsidiaries from waiving, amending, renewing or extending Significant Contracts in the ordinary course of business;
(xi) settle or compromise any material litigation (whether or not commenced prior to the date of this Agreement), other than settlements or compromises of litigation where the settlement payment is paid prior to the Effective Time or is paid by any Person other than the Company and its Subsidiaries; provided, that the foregoing shall not permit the Company or any of its Subsidiaries to settle any litigation, claim or other Proceeding that would impose material restrictions or changes on the business or operations of the Company or any of its Subsidiaries; or
(xii) enter into any executory agreement, commitment or undertaking to do any of the activities prohibited by the foregoing provisions.
(xiii) incur any Company Debt for borrowed money that will not otherwise be terminated at Closing in connection with the terms of this Agreement;
(xiv) make any material loans, advances or capital contributions, except advances for travel and other normal business expenses to officers and employees in the ordinary course of business;
(xv) materially amend, become subject to, knowingly waive any material right under or voluntarily terminate any contract of the type described in Section 3.13, including any material Lease (other than pursuant to (A) bidding for and entering into contracts with customers or suppliers in the DIP Financingordinary course of business and consistent with past practice, (ivB) taking into account Seller’s status terminations of contracts and Real Property Leases as a debtor-in-possession result of the expiration of the term of such contracts or material Leases or the default or breach of any counterparty thereto, (C) renewals of contracts and Real Property Leases in the Bankruptcy Caseordinary course of business and consistent with past practice, preserve intact (D) entering into capital leases in the Business, to keep available the services ordinary course of its current employees business and agents and to maintain its relations and goodwill consistent with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, past practice and (vE) not file terminating employment Contracts for cause);
(xvi) adopt a plan of complete or partial liquidation, dissolution, restructuring or recapitalization;
(xvii) merge, combine or consolidate with any motion Person;
(xviii) cancel, modify or reduce any insurance coverage other than with respect to any Employee Benefit Program in the Bankruptcy Court ordinary course of business; or
(xix) agree in writing to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, of the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operationsforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Concentrix Corp)
Conduct of Business Prior to Closing. Except (a) During the Pre-Closing Period, the parties shall each, and shall each cause their respective Subsidiaries and other Affiliates to, conduct their respective business operations in the ordinary course of business consistent with past practice and in accordance with applicable Law, and to (i) maintain in effect and take all other appropriate actions as expressly contemplated by this Agreement necessary to prevent the abandonment, loss or disclosed on Schedule 6.1(c)impairment of all applications and registrations for, except in the case of the Company, any Intellectual Property included in the Transferred Assets, and, in the case of the Buyer, the Buyer Intellectual Property, and (ii) use reasonable best efforts to preserve intact their respective business operations, including their respective existing assets, organizations, operations, rights, permits and goodwill, and business relationships with key customers, suppliers and manufacturers and other Persons with whom the parties, their respective Subsidiaries and their respective Affiliates have significant business relationships. Notwithstanding anything to the extent contrary in this Section 4.10, the Company acknowledges that the Buyer and certain of its Affiliates will be debtors in the Chapter 11 Cases and neither the filing of the Chapter 11 Cases nor the taking of any actions required by the Plan or required by the Bankruptcy Case and thereafter Court or the Bankruptcy Code shall be construed as a breach of this Section 4.10 by the Buyer, any of its Subsidiaries or any of their respective Affiliates.
(b) Without limiting the foregoing, during the Pre-Closing Period, except as set forth on Schedule 4.10(b) or as expressly required under by this Agreement:
(1) The Company shall not, and shall cause its Subsidiaries and other Affiliates not to, without the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned, delayed conditioned or denieddelayed), Seller shall do any of the following:
(A) mortgage, lease, pledge or otherwise encumber any Transferred Assets or sell, transfer, grant any license, abandon, permit to lapse or otherwise dispose of any Transferred Assets except sales of inventory in the ordinary course of business;
(B) acquire, lease or license-in any right or other asset that would constitute a Transferred Asset from any other Person for an aggregate value in excess of $500,000;
(C) enter into any contract that would constitute an Assumed Contract, or terminate any Assumed Contract, or make any material amendment or modification to, or, other than in the ordinary course of business consistent with past practice, renew or extend or waive any material right under any Assumed Contract;
(D) (i) conduct the Business transfer, assign or grant any license or sublicense of any rights under or with respect to any Intellectual Property included in the Ordinary Course Transferred Assets or (ii) abandon, lapse or allow to lapse, or fail to take any action necessary to maintain the validity and enforceability of, any rights with respect to any Intellectual Property included in the Transferred Assets, other than, with respect to clause (ii), in the ordinary course of Business and in a manner substantially similar to the manner in which Seller has operated, business consistent with past practice practice;
(including E) waive any material claims or rights of material value with respect to the payment of accounts payable of Seller)Business, taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Caseany Transferred Asset or any Assumed Liability;
(F) settle, (ii) notcompromise, directly or indirectlypay, sell or otherwise transfer or disposedischarge, waive, or offerrelease any Action, agree suit, claim, investigation or commit (in writing or otherwise) proceeding with respect to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom Transferred Asset or with which it has business relations, and any Assumed Liability;
(vG) not file vary any motion with the Bankruptcy Court to take any action inconsistent with this Agreement inventory or sales practices (including, without limitation, this Section 6.1(c). Without limiting with respect to the collection of accounts receivable or payments of accounts payable) with respect to any Party’s rights Product in a manner inconsistent with the ordinary course of business (other than increases in pricing charged by the Company or obligations its Subsidiaries for any Products) or fail to produce and maintain inventory levels and amounts consistent with the ordinary course of business and past practice;
(H) make any change in its accounting methods, principles or practices, other than as required by GAAP or applicable Law;
(I) fail to maintain in full force and effect insurance coverage substantially comparable in all material respects to that in effect on the date hereof with respect to the Business or the Transferred Assets;
(J) grant any refunds, credits, rebates or other allowances to any supplier, vendor or distributor with respect to the Business, other than in the ordinary course of business consistent with past practice;
(K) make any changes to the policies and practices of collecting accounts receivable with respect to the Business, including accelerating the due date of any such payments;
(L) permit or allow any of the Transferred Assets to be subjected to any Lien, other than Permitted Liens, and Liens existing on the date hereof;
(M) (i) enter into, terminate, adopt or amend any material Company Benefit Plan or any similar arrangement that would be a material Company Benefit Plan if it were in effect on the date hereof; (ii) grant any increase in compensation or benefits, or make any award or grant under this Agreementany Company Benefit Plan, the Parties understand and agree that to any current or former director, consultant, officer or employee, in each case, except (A) nothing contained in this Agreement shall give Buyerthe ordinary course of business consistent with past practice, directly provided that such increases, grants and awards are not in the aggregate material to the Company or indirectly, any of its Subsidiaries or (B) as required by Law or by the power to control or direct the operations terms of Seller, or the Business any Company Benefit Plan as in effect immediately prior to the Closing and date hereof; or (iii) hire or terminate (except for cause) the employment of (A) any officer or (B) any non-officer employee whose annual compensation is (or is expected to be) at least $200,000; or
(N) agree or commit to do any of the foregoing.
(2) The Buyer shall not, and shall cause its Subsidiaries and other Affiliates not to, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(A) mortgage, lease, pledge or otherwise encumber any material assets or sell, transfer, grant any license, abandon, permit to lapse or otherwise dispose of any material assets except sales of inventory in the ordinary course of business;
(B) acquire, lease or license-in any right or other asset from any other Person for an aggregate value in excess of $500,000;
(C) enter into any contract that would constitute a Buyer Material Contract if entered into prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions date of this Agreement, complete control or terminate any such contract or any Buyer Material Contract, or make any material amendment or modification to (other than increases in pricing charged by the Buyer Entities for any Buyer Products), or, other than in the ordinary course of business consistent with past practice, renew or extend or waive any material right under any such contract or any Buyer Material Contract;
(D) (i) transfer, assign or grant any license or sublicense of any rights under or with respect to any Buyer Intellectual Property or (ii) abandon, lapse or allow to lapse, or fail to take any action necessary to maintain the validity and supervision enforceability of, any rights with respect to any Buyer Intellectual Property, other than, with respect to clause (ii), in the ordinary course of its operations.business consistent with past practice;
(E) waive any material claims or rights of material value with respect to the Buyer Business or any of the Buyer’s assets or liabilities;
(F) settle, compromise, pay, discharge, waive, or release any Action, suit, claim, investigation or proceeding (other than the
Appears in 1 contract
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except Prior to the extent of Closing, the filing of Seller Parties will conduct their respective businesses and affairs only in the Bankruptcy Case ordinary course and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s consistent with their prior written consent (such consent not to be unreasonably withheldpractice and will maintain, conditionedkeep and preserve their assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, delayed or denied), Seller shall and will use their best efforts (i) conduct to preserve the Business in the Ordinary Course business and organization of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Casetheir respective organizations intact, (ii) notto keep available to Surviving Corporation the services of their respective officers, directly or indirectlyemployees, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Businessagents and independent contractors, (iii) notto preserve for the benefit of Surviving Corporation the goodwill of correspondent banks, directly or indirectlysuppliers, permitdepositors, offerloan customers, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Lienslandlords and others having business relations with them, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession to cooperate with each other and use reasonable efforts to assist in obtaining the Bankruptcy Case, preserve intact consent of any party where the Business, to keep available consent of such party may be required by reason of the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c)transactions contemplated hereby. Without limiting any Party’s rights or obligations under this Agreementthe generality of the foregoing, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, the Seller Parties shall exercise consistent withnot without approval of Purchaser: (i) change their articles of association, articles of incorporation or bylaws or merge or consolidate or obligate themselves to do so with or into any other entity, except as specifically required by this Agreement; and subject (ii) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (1) described in subparagraphs (i) through (xvi) of Section 5(i) of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the terms and conditions date hereof or (2) described in Section 5(m) of this Agreement, complete control and supervision of its operationsAgreement which would be required to be set forth on Schedule 5(m) hereof.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (CBCT Bancshares Inc)
Conduct of Business Prior to Closing. Except as expressly contemplated by (a) During the period commencing on the date hereof and ending on the earlier of the Closing Date or the date this Agreement is terminated in accordance with its terms, except: (i) with the written consent of ARC; (ii) as otherwise expressly permitted by the terms of this Agreement; or disclosed on Schedule 6.1(c(iii) as required by Law, SDA shall: (A) conduct its business in the ordinary course in substantially the same manner as currently conducted, and in material compliance with all Laws; and (B) use commercially reasonable efforts to preserve intact its present operations, organization and goodwill and to preserve its present relationships with customers, suppliers, Governmental Authorities and other Persons with whom Seller has business or other relationships.
(b) Without limiting the generality of Section 5.1(a), except to during the extent period commencing on the date hereof and ending on the earlier of the filing of Closing Date or the Bankruptcy Case and thereafter as expressly required under date this Agreement is terminated in accordance with its terms, except: (i) with the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent of ARC; (such consent not to be unreasonably withheld, conditioned, delayed ii) as otherwise expressly permitted by the terms of this Agreement; or denied)(iii) as required by Law, Seller shall not transfer, issue, sell, dispose or pledge of all or any part of the Membership Interest or authorize, commit or agree to do so, and SDA shall not:
(i) conduct (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, guarantee any debt securities of another Person, or enter into any arrangement having the Business economic effect of any of the foregoing; (B) make any loans, advances or capital contributions to any other Person (other than the extension of trade credit in the Ordinary Course ordinary course of Business and business); or (C) make any dividend or distribution to Seller or any other Person (other than dividends or distributions in a manner substantially similar an amount necessary to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account cover Seller’s status as a debtor-in-possession in the Bankruptcy Case, estimated income taxes associated with his ownership of SDA);
(ii) notamend its articles of organization;
(iii) mortgage, directly pledge, create or indirectlyotherwise grant any Encumbrance on any of its property or assets, whether tangible or intangible;
(iv) issue any membership interests in SDA;
(v) transfer, sell or otherwise transfer or disposedispose of, or offer, agree lease or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permitexclusively license, any of its property or assets outside of the Acquired Assets ordinary course of business for which the aggregate consideration paid or payable: (A) in any individual transaction is in excess of $10,000; or (B) in the aggregate is in excess of $25,000;
(vi) or otherwise acquire (whether by merger or otherwise), or lease or license, any property or assets outside of the ordinary course of business consistent with past practice;
(vii) enter into or materially amend or modify or terminate any Material Contract or any contract that, if it was in effect on the date hereof, would have been a Material Contract, or waive any material default under, or release, settle, or compromise any material claim against it or any material liability owing to become subjectit under any Material Contract or such other contract;
(viii) enter into, directly renew, modify or indirectlyrevise any contract with any of its officers, to any Lienmembers or employees, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Caseordinary course of business consistent with past practice; or
(ix) authorize any of, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court commit or agree to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreementof, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operationsforegoing actions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (ARC Group, Inc.)
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except 3.2.1 During the period from the date hereof to the extent Time of Closing, ABC shall ensure that the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent ACH Parties shall:
(such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (ia) conduct the Business and the operations and affairs of the ACH Parties only in the Ordinary Course ordinary and normal course of Business and in a manner substantially similar to the manner in which Seller has operated, business consistent with past practice practice;
(including b) conduct the Business and operations and affairs of the ACH Parties in all material respects in accordance with respect all Applicable Laws, and in full compliance with all Applicable Laws relating to the payment of accounts payable compensation to the Employees, and the deduction, remittance and reporting of Sellersource deductions and related employer contributions in respect of same;
(c) use reasonable commercial efforts to preserve intact the Business and the property, assets, operations and affairs of the ACH Parties and promote and preserve for the Purchaser the goodwill of the Employees, unions, suppliers, customers and others having business relations with the ACH Parties; and
(d) pay and discharge the liabilities of the ACH Parties in the ordinary course in accordance and consistent with the previous practice of the ACH Parties, except those contested in good faith by the ACH Parties. Each of CDPQ and CDP Investissements agrees that it will not take any action to prevent the covenants in this Section 3.2.1 from being satisfied.
3.2.2 During the period from the date hereof to the Time of Closing, ABC shall ensure that the ACH Parties shall not, subject to Section 4.1.2(d), taking without the prior written consent of the Purchaser, agree, commit or enter into account Seller’s status as a debtorany understanding to take any of the following actions:
(a) amend the articles, by-in-possession laws, constating documents or similar document adopted or filed in connection with the Bankruptcy Casecreation, formation or organization of any of the ACH Parties, except for the termination of the Governance Agreements other than the Limited Partnership Agreement, at or prior to Closing;
(iib) notredeem, purchase, retire or otherwise acquire, directly or indirectly, any of the Securities or any of the shares of the Nominees;
(c) issue or sell any shares, units or other securities or issue, sell or otherwise transfer grant any option, warrant or disposeright to purchase any of its shares, units or offerother securities or issue any security convertible into the securities of any of the ACH Parties, agree or commit (in writing or otherwise) to sell grant any registration rights or otherwise transfer make any change to the authorized or issued capital of any of the ACH Parties;
(d) dispose of any of the Acquired Assetsassets reflected on the balance sheet forming part of the Annual Financial Statements, except sales of assets in the ordinary and normal course of business consistent with past practice;
(e) make any change in its accounting principles, policies, practices or methods;
(f) cancel or waive any debt, claim or other right owed to, or for the benefit of, any ACH Party, other than as reflected in the Closing Net Working Capital;
(g) incur or assume any liabilities or obligations of any nature, whether absolute, accrued, contingent or otherwise, except unsecured current liabilities incurred in the ordinary and normal course of business consistent with past practice;
(h) mortgage, pledge, grant a security interest in or otherwise create an Encumbrance on any of property or assets of any ACH Party, except in the Ordinary Course ordinary and normal course of Businessbusiness consistent with past practice and in amounts which, (iii) notindividually and in the aggregate, directly or indirectly, permit, offer, agree or commit are not material to permit, any the financial condition of the Acquired Assets ACH Parties or the operation of the Business;
(i) other than the addition of Schedules K-2 and K-3 to become subject, directly or indirectlythe OPA Contract, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liensbe in substantially the same form as Schedule K-1 thereto, and the transfer of the Xxxxxx Property, enter into any contract or any other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession transaction that is not in the Bankruptcy Caseordinary and normal course of business consistent with past practice;
(j) terminate, preserve intact the Businesscancel, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom modify or with which it has business relations, and (v) not file any motion with the Bankruptcy Court amend or take or fail to take any action inconsistent which would entitle any party to any Facilities Contract to terminate, cancel, modify or amend any Facilities Contract except for the termination of the Governance Agreements other than the Limited Partnership Agreement, at or prior to Closing;
(k) except to the extent reflected in the Closing Net Working Capital, incur any indebtedness for borrowed money to any other Person or incur any other liability or obligation to any other Person which is required to be classified as a liability on the liability side of a balance sheet in accordance with this Agreement includingGAAP;
(l) give or agree to give or become a party to or bound by any guarantee, without limitationsurety or indemnity in respect of indebtedness or other obligations or liabilities of any other Person or become a party to any other commitment by which any ACH Party is, or is contingently, responsible for such indebtedness or other liability or obligation;
(m) purchase or otherwise acquire any interest in any securities of any other Person;
(n) enter into any Contract or commitment to, or otherwise proceed to, hire or terminate the services of any officer or senior management Employee;
(o) enter into or amend any agreement not at arm’s length including with any Affiliate of the Vendors except for the Definitive Agreements and the transfer of land referred to in Section 3.6; or
(p) agree, commit or enter into any understanding to take any actions enumerated in paragraphs (a) to (o) of this Section 6.1(c)3.2.2. Without limiting Each of CDPQ and CDP Investissements agrees that it will not take any Party’s rights or obligations under this Agreement, action to prevent the Parties understand and agree that (A) nothing contained covenants in this Agreement Section 3.2.2 from being satisfied.
3.2.3 During the period from the date hereof to the Time of Closing, ABC shall notify the Purchaser if ABC enters into, engages in or concludes any negotiations with any union or bargaining agent in respect of any Employees that would improve any such Employee’s compensation or benefits or that would otherwise materially increase ABC’s obligations with respect to any Employees, provided that notice is not required for ABC’s participation in or negotiation of the matters disclosed in Schedule 6.2.11(e).
3.2.4 During the period from the date hereof to the Time of Closing, ABC shall continue to maintain in full force and effect all policies of insurance or renewals thereof now in effect and shall give Buyer, directly or indirectly, the power to control or direct the operations all notices and present all claims under all policies of Seller, or the Business prior to the Closing insurance in a due and (B) prior to the Closing, Seller shall exercise consistent with, and subject to the terms and conditions of this Agreement, complete control and supervision of its operationstimely fashion.
Appears in 1 contract
Samples: Securities Purchase Agreement (AbitibiBowater Inc.)
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (ia) conduct the Business in the Ordinary Course of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, (ii) not, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior Prior to the Closing, Seller shall exercise conduct its business and affairs only in the ordinary course and consistent withwith its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and subject Seller and Shareholders will use their best efforts to preserve the terms business and conditions organization of Seller intact, to keep available to Purchaser the services of Seller's present officers and employees, to preserve for the benefit of Purchaser the goodwill of Seller's suppliers and customers and others having business relations with it and to cooperate with Purchaser in its efforts to obtain the financing of the cash portion of the purchase price in accordance with the provisions of this Agreement. Seller shall give Purchaser prompt written notice of any change in any of the information contained in the representations and warranties made by Seller in this Agreement which occurs prior to the Closing. Without limiting the generality of the foregoing, complete control prior to the Closing Seller will not without Purchaser's prior written approval:
(i) change its certificate of incorporation or by-laws or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and supervision described under subparagraph (x) of its operationsSection 6(n) above; or
(iii) Perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type described in subparagraphs (i), (ii), (iii), (iv), (v), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xvi) or (xvii) of Section 6(j) of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof.
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Samples: Purchase and Sale Agreement (Colonial Commercial Corp)
Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or disclosed on Schedule 6.1(c), except to the extent of the filing of the Bankruptcy Case and thereafter as expressly required under the Bankruptcy Code or other applicable Law or any ruling or order of the Bankruptcy Court and/or except to the extent waived by Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned, delayed or denied), Seller shall (ia) conduct the Business in the Ordinary Course of Business and in a manner substantially similar to the manner in which Seller has operated, consistent with past practice (including with respect to the payment of accounts payable of Seller), taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, (ii) not, directly or indirectly, sell or otherwise transfer or dispose, or offer, agree or commit (in writing or otherwise) to sell or otherwise transfer or dispose of any of the Acquired Assets, except in the Ordinary Course of Business, (iii) not, directly or indirectly, permit, offer, agree or commit to permit, any of the Acquired Assets to become subject, directly or indirectly, to any Lien, Claim, Interest or Encumbrance, except for Permitted Liens, and other than pursuant to the DIP Financing, (iv) taking into account Seller’s status as a debtor-in-possession in the Bankruptcy Case, preserve intact the Business, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its vendors, suppliers, customers, distributors and any others with whom or with which it has business relations, and (v) not file any motion with the Bankruptcy Court to take any action inconsistent with this Agreement including, without limitation, this Section 6.1(c). Without limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (A) nothing contained in this Agreement shall give Buyer, directly or indirectly, the power to control or direct the operations of Seller, or the Business prior to the Closing and (B) prior Prior to the Closing, Seller shall exercise conduct its Business and affairs only in the ordinary course and consistent withwith its prior practice and shall maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and subject Seller and Member will use their best efforts (i) to preserve the Business and organization of Seller intact, (ii) to keep available to Purchaser the services of Seller's present officers, employees, agents and independent contractors, (iii) to preserve for the benefit of Purchaser the goodwill of Seller's suppliers, customers, landlords and others having business relations with it, (iv) to cooperate with Purchaser and use reasonable efforts to assist Purchaser in obtaining the consent of any landlord or other party to any lease or contract with Seller where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby and (v) to cooperate with Purchaser in its efforts to obtain the financing of the Cash Consideration. Without limiting the generality of the foregoing, prior to the terms Closing Seller will not without Purchaser's prior written approval:
(i) change its certificate of organization or other governing documents or merge or consolidate or obligate itself to do so with or into any other entity;
(ii) enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and conditions described under subparagraph (j) of Section 5.14 above; or
(iii) with the exception of the redemption or purchase of the interests of certain members of Seller, perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (A) described in subparagraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (n), (p) or (q) of Section 5.10 of this AgreementAgreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof or (B) described in Section 5.3 of this Agreement which would be required to be set forth on SCHEDULE 5.3 hereof.
(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 V or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing.
(c) Seller shall, complete control and supervision Member will cause Seller to, consult with and follow the recommendations of Purchaser with respect to (i) the cancellation of contracts, agreements; commitments or other understandings or arrangements to which Seller is a party, including, without limitation, purchase orders for any item of inventory and commitments for capital expenditures or improvements, (ii) the commencement in one or more of Seller's locations of the orderly and gradual discontinuance of particular items or operations and (iii) purchasing, pricing or selling policy including, without limitation, selling merchandise at discounts; PROVIDED, HOWEVER, that nothing contained in this subsection (c) shall require Seller to take or fail to take any action that, in Seller's reasonable judgment, is likely to give rise to a substantial penalty or a claim for damages by any third party against Seller, or is likely to result in losses or reduced profits to Seller, or is otherwise likely to prejudice in any material respect or unduly interfere with the conduct of Seller's Business and operations in the ordinary course consistent with prior practice, or is likely to result in a breach by Seller of any of its operationsrepresentations, warranties or covenants contained in this Agreement (unless any much breach is first waived in writing by Purchaser).
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