Conduct of Business Prior to Closing. During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or the Closing Date (the “Pre-Closing Period”), Seller shall use commercially reasonable efforts to: (i) cause the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion: (a) issue or sell any equity securities or debt securities of the Company; (b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company; (c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the Company; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company; (e) declare, set aside or pay any dividend or other distribution; (f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person; (g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens; (h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property); (i) make any commitments for capital expenditures; (j) make any amendments to the Charter or Bylaws of the Company; (k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP; (l) enter into any partnership, limited liability company or joint venture agreement; (m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company; (n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination; (o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person; (p) enter into, terminate or make any material amendment to any Contract; (q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief; (r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement; (s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees; (t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or (u) agree or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Share Purchase Agreement (Beijing Sun Seven Stars Culture Development LTD), Share Purchase Agreement (You on Demand Holdings, Inc.)
Conduct of Business Prior to Closing. During the period between commencing on the date of this Agreement until and terminating upon the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Section 9.1 or 6.16, the Closing Date Selling Parties shall (and shall cause the “Pre-Closing Period”), Seller shall JL Entities to): (i) conduct the Business only in the ordinary course and (ii) use commercially reasonable efforts to: to maintain the assets and properties of the JL Entities in their current condition, to keep intact the Business and to preserve and continue relationships with customers, suppliers, vendors and others with whom the JL Entities deal (i) cause whether under existing Contracts or otherwise). Notwithstanding anything to the Company contrary herein or elsewhere, during the period commencing on the date of this Agreement and terminating upon the earlier to be formed and capitalized, occur of the Closing and the shares termination of the Company’s capital stock, including the Shares, this Agreement pursuant to be issued, and in accordance with all applicable Laws; (ii) maintain Section 6.16, the books of accountSelling Parties shall not do, records and files permit or cause to be done any of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent following without the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(ai) create, permit to be created or suffer any Lien on the assets or properties of the JL Entities or on the Units;
(ii) amend in any respect the certificate or articles of organization, operating agreement or other organizational document of any JL Entity;
(iii) issue or sell any equity securities interests or debt securities of the Company;
(b) directly Convertibles in any JL Entity or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the Company;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside declare or pay any dividend or make any other distributiondistribution on the equity of any JL Entity or purchase or redeem any equity interests in any JL Entity;
(fiv) incurtake any action that would materially interfere with the consummation of the transactions contemplated by this Agreement or materially delay the consummation thereof;
(v) take or permit to be taken any action identified in Section 4.6 (or fail to take or cause to be taken any action the failure of which would need to be disclosed under Section 4.6);
(vi) amend or modify any Material Contract or enter into any Contract that would be deemed to be a “Material Contract” under Section 4.9;
(vii) amend, assume modify, adopt or guarantee create any Company Debt Benefit Plan; hire any new employee or make independent contractor; or change the compensation (whether salary, bonus, commission or otherwise) of any loans employee, independent contractor, sales representative or advances to any other Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(oviii) enter into any Contract by which the Business with any PPLB Person (or any officer, director/manager or employee of any JL Entity or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Lawtheir Related Persons); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(uix) agree or commit to do take or cause to be taken any of the foregoingactions set forth in this Section 6.13.
Appears in 1 contract
Conduct of Business Prior to Closing. During the period The Company agrees that, between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or Original Date and the Closing Date Date, (a) it shall operate and cause its Subsidiaries to operate in the “Pre-Closing Period”)ordinary course of business, Seller shall use commercially reasonable efforts to: (i) cause the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance consistent with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; past practices and (iiib) inform Buyer except as described in writing of any event Schedule 6.1 or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically otherwise contemplated by this Agreement or any documents or instruments executed Agreement, in connection with the consummation furtherance of the Transactions or (y) as provided on Schedule 6.1foregoing, the Company shall will not, and Seller shall will cause the Company each of its Subsidiaries not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(a) authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any equity stock of any class or any other securities or debt securities Equity Interests (other than the issuance of shares of Voting Common Stock upon the Companyexercise of Options outstanding on the Original Date);
(b) directly make any change to the Certificate of Incorporation or indirectly purchaseBy-laws or the organizational documents of its Subsidiaries, redeem or otherwise acquire or dispose of any change the authorized capital stock or Equity Interests of the CompanyCompany or any of its Subsidiaries;
(c) split, combine merge or reclassify consolidate the Company or any of its Subsidiaries with any Person or consummate any other business combination transaction (other than the outstanding shares Merger or classes any merger, consolidation or business combination of capital stock of a Subsidiary with and into the CompanyCompany or a Subsidiary);
(d) adopt a plan borrow any amount or incur or become subject to any Indebtedness, including any reborrowings under any of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization its existing credit facilities or other reorganization of debt financing arrangements (other than borrowings prior to the Measurement Time under the Company’s existing revolving credit facility in the ordinary course of business);
(ei) prepay any loans (if any) from its stockholders, officers or directors or any Person affiliated with any of the foregoing, (ii) make any material change in its borrowing arrangements, (iii) modify, amend or terminate any of its contracts or agreements set forth on Schedule 4.12 or any of the other Schedules hereto (except as specifically authorized by Parent in writing), (iv) waive, release or assign any material rights or claims (whether or not in the ordinary course of business) or (v) enter into any contract, agreement or arrangement that would be required to be set forth on Schedule 4.12 if entered into prior to the Original Date (other than new contracts or agreements with customers and clients in the ordinary course of business (any such new contract or agreement with a customer or client in the ordinary course of business, a “New Ordinary Course Contract”));
(f) change accounting policies or procedures, except as required by law or by GAAP;
(i) except for the acceleration of unvested stock options under the Plan in the discretion of the Company Board, make or grant or promise any bonus or any wage, salary or compensation increase in excess of $10,000 per year to any director, officer or employee of the Company or any Subsidiary, and (ii) except in the ordinary course of business consistent with past practice or in accordance with the existing terms of contracts entered into prior to the Original Date, make or grant or promise any increase in other benefits to be made available under any employee benefit plan or arrangement, or (iii) amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement;
(h) make any material acquisitions in excess of $1,000,000 in the aggregate or commit to make any capital expenditures involving the payment of more than $250,000 in the aggregate except as provided in Annex A to Schedule 4.6(a);
(i) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(j) settle or compromise any material dispute affecting the Company or any of its Subsidiaries;
(k) implement any layoff of employees that could implicate the WARN Act (as defined herein);
(l) redeem or repurchase, directly or indirectly, any Equity Interests of the Company or declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt dividends or make any loans other distributions (whether in cash or advances in kind) with respect to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws Equity Interests of the Company;
(km) subject any portion of its properties or assets to any Encumbrance (other than Encumbrances permitted by Section 4.10(b) or Encumbrances in the ordinary course of business which the Company shall be caused to be released immediately prior to the Closing);
(n) sell, lease, license, assign or transfer any portion of its assets or properties, except for sales of inventory or product in the ordinary course of business to unaffiliated third Persons on an arm’s length basis or as specifically contemplated by this Agreement, or canceled without fair consideration any material debts or claims owing to or held by it;
(o) incur any intercompany charges or conduct its cash management customs and practices, in each case other than in the ordinary course of business (including, without limitation, with respect to maintenance of working capital balances and inventory levels, making of capital expenditures, collection of accounts receivable and payment of accounts payable);
(p) make any material change in loans or advances to, or guarantees for the Company accounting methods or practicesbenefit of, other than as required by P.R.C. GAAPany Persons;
(lq) enter into grant any partnership, limited liability company or joint venture agreementperformance guarantee to its customers other than in the ordinary course of business and consistent with the policies and practices disclosed to Parent;
(mr) waive abandon or release fail to maintain in effect any rights registrations or issuances with respect to the Company Intellectual Property;
(s) during the period from 11:59 p.m. (New York City time) on December 31, 2006 through and including the close of material valuebusiness on January 9, 2007: (i) make any distributions or cancelother payments of any cash and/or cash equivalents (including, compromisewithout limitation, any payments in respect of any Accelerated Earnout Payments and any fees and expenses of the Company and/or any of its Subsidiaries related to the negotiation and the consummation of the transactions contemplated by this Agreement (including any and all fees and expenses owed to Xxxxxx Xxxxxxxx & Co. and Xxxxxxx Brothers Management Corp.)), except (1) for those expenditures to unaffiliated third parties (e.g., excluding any Common Equity Holder or any of their Affiliates or any of their family members, relatives or co-habitants) with respect to trade obligations incurred in the ordinary course of business consistent with past custom and practice and which were accrued for on a dollar-for-dollar basis as a current liability in Closing Working Capital (as finally determined), (2) for the repayment of Indebtedness outstanding as of the Measurement Time to the extent such amounts are included as a reduction to the Merger Consideration pursuant to Section 2.1(d)(iii)(A) of this Agreement, (3) for ordinary course payroll and for travel and entertainment reimbursement payments which, in each case, are due in the ordinary course during such period and which were accrued for on a dollar-for-dollar basis as a current liability in Closing Working Capital (as finally determined), (4) for the premium payment for the Tail Policy or (5) to the extent pre-approved in writing by Parent, (ii) incur, assume or otherwise become liable with respect to any liability or obligation, except for any such trade obligation with an unaffiliated third party (e.g., excluding any Common Equity Holder or any of their Affiliates or any of their family members, relatives or co-habitants) incurred in the ordinary course of business consistent with past custom and practice and which, if incurred prior to the Measurement Time, would be required to be accrued for as a current liability in Closing Working Capital or (iii) waive, release or assign any material indebtedness owed rights or claims (whether or not in the ordinary course of business) which are accrued for as a current asset in Closing Working Capital (as finally determined); notwithstanding the foregoing, this Section 6.1(s) shall not be deemed to prohibit the Company;making at the Closing of any of the payments to be made at the Closing in accordance with Article II hereof; or
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(ot) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or propertiesexecutory agreement, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit undertaking to do any of the foregoingactivities prohibited by the foregoing provisions. Prior to the Closing, the Company shall be permitted to pay down existing Indebtedness (subject to compliance with the other terms and conditions set forth in this Agreement, including, without limitation, clause (s) above).
Appears in 1 contract
Samples: Agreement and Plan of Merger (WII Components, Inc.)
Conduct of Business Prior to Closing. (a) During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or the Closing Date (the “Pre-Closing Interim Period”), Seller shall use commercially reasonable efforts to: except (i) cause the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically expressly contemplated by this Agreement or any documents other Transaction Document, (ii) as required by Governmental Rule, (iii) as set forth on Schedule 6.01, (iv) as otherwise consented to in writing by Buyer (not to be unreasonably withheld, conditioned, or instruments executed in connection with the consummation of the Transactions delayed), or (yv) as provided to use cash on Schedule 6.1hand prior to the Closing Date to pay or satisfy any Company Debt or Company Expenses, the Company shall notwill, and Seller shall will cause each other Company Party to, operate its business only in the Ordinary Course of Business and use its commercially reasonable efforts to preserve in all material respects the present business operations, assets, organization and goodwill of the Company Parties (including with key suppliers, customers, employees, Governmental Authorities and others having business relationships with the Company Parties). Notwithstanding and without limiting the generality of the foregoing, during the Interim Period, subject to the exceptions described in clauses (i) through (v) above, the Company will not and will cause each other Company Party not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(ai) issue, sell, pledge, encumber, grant or deliver any Equity Securities of any Company Party or issue or sell any equity securities convertible into, or debt securities options, or warrants to purchase or rights to subscribe for, any Equity Securities of the Companyany Company Party;
(bii) directly (A) make, pay, set aside or indirectly purchasedeclare any non-cash dividend or other non-cash distribution in respect of the Equity Securities of the Company Parties (other than any cash dividend or distribution in accordance with the terms of the Organizational Documents of the Company Parties, redeem which shall be paid in full prior to the Closing Date), (B) effect any recapitalization, reclassification or like change in its capitalization or split, combine, or otherwise acquire or dispose amend the terms of any capital stock Equity Securities of any Company Party, or (C) make any redemption or purchase of any of the CompanyEquity Securities of any Company Party;
(ciii) splitmake any loan to, combine or reclassify enter into any other material transaction with, any of its directors, officers, and employees outside the outstanding shares or classes Ordinary Course of capital stock of the CompanyBusiness;
(div) adopt any amendment to, or amend or modify, or waive any terms of, any Company Party’s Organizational Documents;
(v) sell, lease, license, lapse, fail to maintain, assign, transfer or otherwise dispose of or encumber any material tangible assets or any real property of the Company Parties, other than in the Ordinary Course of Business or the sale of inventory;
(vi) grant, mortgage, pledge or suffer to exist any Liens, other than Permitted Liens, on any tangible assets or real property of the Company Parties except pursuant to then-existing Contracts (in each case, that have been made available to Buyer);
(vii) incur any Company Debt, other than in the Ordinary Course of Business, or grant or create any Lien, other than Permitted Liens;
(viii) make any material changes to its accounting methods, principles or policies, except to the extent required to conform to GAAP, or its cash management policies, including its existing credit collection and payment policies, procedures and practices with respect to accounts receivable and accounts payable, including acceleration of collections, failure to make or delay collections (whether or not past due), acceleration of payments or failure to pay or delay in payments of payables;
(ix) with respect to any Company Party and except with respect to the transactions contemplated by this Agreement, (A) make, change or rescind an entity classification election or make change or rescind any other material Tax election, (B) except as required by any Governmental Rule, change an accounting period for Tax purposes or any other Tax accounting method, (C) enter into an agreement with a Governmental Authority with respect to Taxes, (D) enter into a Tax allocation, sharing or indemnity agreement or arrangement (in each case other than pursuant to any agreement or arrangement entered into in the Ordinary Course of Business that is primarily not related to Taxes, such as leases or credit agreements), (E) file an amended Tax Return, (F) take any action in respect of Taxes that would result in liability for material Taxes outside the Ordinary Course of Business, (G) prepare or file a Tax Return in a manner inconsistent with past practice, (H) consent to an extension or waiver of the limitation period applicable to any Taxes or Tax Return, (I) apply for a voluntary Tax disclosure or Tax amnesty or made any similar filing, (J) settle or compromise a claim, notice, audit, assessment or other Proceeding by a Governmental Authority for material Taxes, or (K) surrender a right to claim a material refund, credit or other reduction of Taxes;
(x) (A) amend, modify, terminate, accelerate or waive any material term under, any Material Business Agreement (excluding, for the avoidance of doubt, the (i) expiration of any Material Business Agreement in accordance with its terms, or (ii) acceptance or entry into of any statement of work or purchase order under any Material Business Agreement in effect as of the date hereof), or (B) enter into any Contract that would constitute a Material Business Agreement if entered into prior to the date hereof (in each case within the foregoing clauses (A) and (B), other than in the Ordinary Course of Business);
(xi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization consolidation or other reorganization of the Companyreorganization;
(exii) declareenter into any agreement to acquire any other Person (whether by merger, set aside acquisition of equity, acquisition of assets, or pay any dividend otherwise) or consummate the transactions contemplated by such an agreement (other distributionthan this Agreement);
(fxiii) incursell, assume license, transfer, assign, abandon, dedicate to the public, permit to lapse or guarantee otherwise dispose of any Company Debt or make any loans or advances to any Personmaterial Intellectual Property, other than in the Ordinary Course of Business;
(gxiv) subject make, enter into, modify, amend or terminate, any Contract providing for the employment or engagement of any individual service provider of any Company Party providing annual base compensation in excess of $200,000, in each case whether written or oral, except for any such Contract which can be unilaterally terminated by the Company Parties for any reason without any notice or waiting periods and without incurring any liability;
(A) hire or terminate any employee, director or individual service provider (except for the hiring or termination of employees with aggregate annual base compensation below $200,000), or (B) implement any mass layoff, plant closure, group termination or other material reduction in force with respect to, or which otherwise could affect, any employees;
(xvi) except to the extent required to comply with applicable Governmental Rules or the terms of the Plans in existence as of the date hereof, (A) make or grant any material increase in compensation or benefits under any Plan; (B) materially amend or terminate any existing Plan or adopt any new Plan (except in the Ordinary Course of Business with respect to employer offer letters that do not contain severance or transaction payments or benefits); (C) increase the amount of wages, salary, bonuses, commissions, fringe benefits, severance or other compensation, benefits or remuneration payable to any current or former employee or director of, or individual service provider to the Company Parties whose annual compensation exceeds $200,000; or (D) take any action to accelerate any payment or benefit, the vesting, payment or funding (through a grantor trust or otherwise) under any Plan or other equity, equity-based or non-equity based award or other payment or benefit, payable or to become payable to any current or former employee or director of, or individual service provider to the Company Parties;
(xvii) negotiate, modify, extend or enter into any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization or works council or recognize or certify any labor union, labor organization or works council or group of employees as the bargaining representative of any employees;
(xviii) enter into any Related Party Agreement, unless in the Ordinary Course of Business and on arms-length terms;
(xix) commence any new line of business or terminate any existing line of business;
(xx) pay, discharge, settle or compromise any pending or threatened Proceeding that would result in the payment by any Company Party of more than $100,000 individually or would result in the imposition of any material injunctive relief against any Company Party;
(A) take any action or actions intended to prejudice the Company Parties’ ability to recover, or the availability of, amounts related to the enfoPoint Earnout under the Theriault Earnout Agreement, including without limitation the availability of the SPR Earnout Reserve Amount (it being understood that any transactions contemplated hereunder or in the Disclosure Schedules shall not be deemed to prejudice the Company Parties), (B) amend or modify the terms of or waive any of the Company assets Parties’ respective rights under the Theriault Earnout Agreement, the INOC Earnout Agreement or the enfoPoint Earnout Agreement, or (real, personal or mixed, tangible or intangibleC) agree to any Liensettlement or any other agreement regarding the Theriault Earnout, the INOC Earnout, or the enfoPoint Earnout (except with the Buyer’s consent, not to be unreasonably withheld, conditioned, or delayed), except, in each case within the foregoing clauses (B) and (C), for Permitted Liens;
(h) permit or allow any settlement and/or termination of the saleTheriault Earnout and/or the INOC Earnout, lease, transfer, abandonment, cancellation or disposition of any pursuant to an agreement under which all payment obligations of the Company assets (realParties under the Theriault Earnout and/or the INOC Earnout, personal or mixedas applicable, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change are satisfied in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted full prior to the date hereof would constitute a breach Closing, which agreement does not impose any other obligations on the Company Parties following the Closing (other than the release of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Lawclaims, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Lawconfidentiality obligations, and/or non-disparagement restrictions); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(uxxii) authorize, agree or commit to do any of the foregoing.
(b) Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Company Parties prior to the Closing.
Appears in 1 contract
Conduct of Business Prior to Closing. During From the period between the date of this Agreement Effective Date until the earlier Closing, except as (w) otherwise expressly provided herein, (x) expressly consented to occur of in writing by Buyer, or (y) set forth on Schedule 4.2, the termination of this Agreement in accordance with Section 9.1 or the Closing Date Sellers and SMP will, and will cause SMP’s directors, officers, employees, agents and representative to:
(the “Pre-Closing Period”), Seller shall i) use its commercially reasonable efforts to: (i) cause to preserve the Company to be formed present business operations, organization and capitalizedgoodwill of SMP and preserve present relationships with customers, suppliers and the shares employees of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; SMP and (ii) maintain conduct the books business of account, records and files SMP in the Ordinary Course of Business;
(b) not enter into any new agreement for the sale or distribution of Company Products other than as required under SMP’s agreements existing as of the Company in accordance Effective Date;
(c) not enter into an agreement with all applicable Laws; and a new supplier;
(iiid) inform Buyer in writing of not take or permit any event action that, if it had been taken or circumstance that has or permitted prior to the Effective Date, would reasonably be expected to have, a Material Adverse Effect, or which constitutes result in a breach of any representation, representation or warranty made by the Sellers or covenant set forth herein, promptly, and the Shareholder Representative in this Agreement;
(e) not amend its Governing Documents in any event prior to manner that would frustrate the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically transactions contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(a) issue or sell any equity securities or debt securities of the CompanyAgreement;
(bf) directly not merge or indirectly purchase, redeem or otherwise acquire or dispose of consolidate with any capital stock of the Companyother Person;
(cg) split, combine or reclassify any of the outstanding shares or classes of capital stock of the Company;
(d) not adopt a plan of or complete or partial liquidation, liquidation or authorize or undertake a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liensreorganization;
(h) permit not sell, pledge, dispose of, transfer, lease, license, guarantee, encumber or allow authorize the sale, leasepledge, disposition, transfer, abandonmentlease, cancellation license, guarantee or disposition encumbrance of any assets, other than any sale of inventory in the Ordinary Course of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property)Business;
(i) make not pledge, dispose of, transfer, lease, license, guarantee, encumber or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumber any commitments for capital expendituresEquity Interests in SMP, or issue any subscriptions, options, warrants, calls, contracts, demands, commitments, or convertible securities under which any Seller is obligated to issue any Equity Interests of SMP;
(j) make not take any amendments action that would reasonably be expected to materially increase Taxes with respect to the Charter Business or Bylaws the Acquired Assets for any taxable period beginning after the Closing Date or the portion of any Straddle Period beginning the Companyday after the Closing Date;
(k) make not waive, release, compromise or settle any material change in pending or threatened Action except for Actions with respect to which an insurer has the Company accounting methods or practices, other than as required by P.R.C. GAAP;sole right to control the decision to settle; or
(l) enter into agree, commit or offer to or fail to perform any partnershipaction that results in or legally binds SMP, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business Shareholder Representative or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit Sellers to do any of the foregoingforegoing referred to in clauses (a)-(k) of this Section 4.2.
Appears in 1 contract
Conduct of Business Prior to Closing. During Except as expressly provided or permitted herein, as set forth in Schedule 6.1 or as consented to in writing by Parent (which consent shall not be unreasonably conditioned, withheld or delayed), during the period between commencing on the date of this Agreement until and ending at the Effective Time or such earlier to occur of the termination of date as this Agreement may be terminated in accordance with Section 9.1 or the Closing Date its terms (such period is referred to as the “Pre-Closing Period”), Seller the Company shall use commercially reasonable efforts to: to (ia) cause act and carry on its business in the Company to be formed ordinary course of business consistent with past practice, (b) maintain and capitalizedpreserve its business organization, assets and properties, and (c) continue to perform in all material respects under existing material contracts in effect on the shares date hereof (for the respective terms provided in such contracts). Without limiting the generality of the Company’s capital stockforegoing, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event except as expressly provided or circumstance that has permitted herein or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant as set forth hereinin Schedule 6.1, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During during the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause directly or indirectly, other than in the Company not toordinary course of business, absent do any of the following without the prior written consent of BuyerParent (which consent shall not be unreasonably conditioned, which may be withheld, conditioned or delayed delayed; provided, that should Parent not provide its written consent or written denial within two Business Days of its receipt of any written request by Buyer in the Company pursuant to this Section 6.1, Parent shall be deemed to have provided its sole discretion:written consent to any such request):
(a) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock, (B) split, combine or reclassify any of its capital stock or issue or sell authorize the issuance of any equity other securities in respect of, in lieu of or in substitution for its capital stock or any of its other securities, or (C) purchase, redeem or otherwise acquire any of its capital stock or any securities or debt obligations convertible into or exchangeable for any of its capital stock or any other of its securities or any rights, warrants or options to acquire any such capital stock or other securities, except, in the case of this clause (C), for the acquisition of Company Common Stock from former employees, members of the Company Board and consultants in accordance with agreements providing for the repurchase of Company Common Stock in connection with any termination of services to the Company;
(b) directly authorize for issuance, issue or indirectly purchasesell or agree or commit to issue or sell (whether through the issuance or granting of options, redeem warrants, commitments, subscriptions, rights to purchase or otherwise acquire or dispose otherwise) any capital stock of any class or any other securities or equity equivalents, other than the conversion of Company Options into Company Common Stock upon the termination of the Company Stock Option Plans in connection with this Agreement;
(c) amend or modify or agree to amend or modify (or announcement of an intention to amend or modify) the Company Stock Option Plans or any of the awards granted thereunder, including with respect to vesting acceleration of any such awards;
(d) make any change to the Certificate of Incorporation or Bylaws or change the authorized capital stock of the Company;
(ce) split(A) incur any Indebtedness or guarantee any such indebtedness of another Person, combine (B) issue or reclassify sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the outstanding shares foregoing, (C) make any loans, advances or classes of capital stock of contributions to, or investment in, any other Person, other than the Company;
, or (dD) adopt a plan mortgage, pledge or otherwise encumber any material assets, or create or suffer any material lien thereupon, except, in each case, in the ordinary course of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distributionbusiness and consistent with prior practices;
(f) incurmaterially change accounting policies or procedures, assume except as required by law or guarantee any Company Debt or make any loans or advances to any Personby GAAP;
(g) subject increase the rates of direct compensation or bonus compensation payable or to become payable to any officer, employee, agent or consultant of the Company assets (real, personal or mixed, tangible or intangible) to any LienCompany, except in accordance with the existing terms of contracts entered into prior to the date of this Agreement or for Permitted Liensannual increases of salaries in the ordinary course of business not to exceed $10,000 in the aggregate;
(h) permit make any material acquisition or allow capital expenditure in excess of $25,000 in the saleaggregate for the Company, leasetaken as a whole, transfer, abandonment, cancellation other than in the ordinary course of business or disposition of any of as provided for in the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property)Company’s annual budget;
(i) make sell, lease, license, pledge or otherwise dispose of or encumber any commitments for capital expendituresmaterial properties or material assets of the Company other than in the ordinary course of business and consistent with prior practices;
(j) make any amendments except to the Charter extent subject to reserves reflected on the Base Balance Sheet or Bylaws of the Company;
(k) make any material change footnotes to the reviewed Financial Statements in accordance with GAAP, in the ordinary course of business or as specifically provided in this Agreement, enter into, materially modify, materially amend or terminate any Material Contract or agreement to which the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material valueis party, or cancel, compromiseknowingly waive, release or assign any material indebtedness owed to rights or material claims (including any material write-off or other material compromise of any accounts receivable of the Company);
(nk) cancel settle or terminate compromise any insurance policy naming litigation or other disputes (whether or not commenced prior to the Company as a beneficiary date of this Agreement) other than settlements or a loss payable payee unless compromises for litigation or other disputes where the same shall be replaced with one amount paid in settlement or more insurance policies providing coverage reasonably comparable compromise does not exceed $25,000 in scope and terms and Buyer has been provided with prompt written notice of the aggregate, for all such cancellation litigation or terminationother disputes;
(ol) renew or extend the term of the Contract set forth on Schedule 6.1(l); or
(m) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or propertiesexecutory agreement, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit undertaking to do any of the activities prohibited by the foregoing provisions. Notwithstanding the foregoing, nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company prior to the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Athenahealth Inc)
Conduct of Business Prior to Closing. (a) During the period between from the date of this Agreement until to the earlier to occur Closing Time, except: (A) as otherwise expressly required or permitted by this Agreement, (B) as a result of or in connection with any COVID-19 Measures, (C) as required by Law, (D) as set out in the Vendor Disclosure Letter or (E) with the prior written consent of the termination of this Agreement in accordance with Section 9.1 Purchaser (such consent not to be unreasonably withheld, conditioned, or the Closing Date (the “Pre-Closing Period”delayed), Seller the Vendor shall use commercially reasonable efforts to: (i) cause promptly advise the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer Purchaser in writing of any event fact or circumstance any change in the business, operations, assets, liabilities, capitalization or financial condition of the Company or the Roughrider Subsidiary, or any change in or to the Roughrider Property that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and result in any event of the conditions precedent of the Purchaser set out in Article 5 not being met prior to the Closing Date and within two Outside Date.
(2b) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-period from the date of this Agreement to the Closing PeriodTime, except: except (xA) as specifically contemplated otherwise expressly required or permitted by this Agreement or any documents or instruments executed Agreement, (B) as set out in connection with the consummation of the Transactions Vendor Disclosure Letter, (C) as required by Law, or (yD) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent with the prior written consent of Buyer, which may the Purchaser (such consent not to be unreasonably withheld, conditioned conditioned, or delayed by Buyer in its sole discretiondelayed), the Vendor, the Company and the Roughrider Subsidiary shall not:
(ai) issue sell, transfer, dispose of, lease, encumber, relinquish, reduce, modify, abandon or sell grant any equity securities royalty, option to purchase, right of first offer/refusal or debt securities promise to enter into any Contract capable of becoming any of the Companyforegoing over the Roughrider Mining Rights;
(bii) directly enter into any contract or indirectly purchaseother arrangement that would constitute a Material Contract,
(iii) amend, redeem modify or otherwise acquire renew any Material Contract,
(iv) waive any material benefits under any Material Contract or dispose grant any consent or release in respect of any capital stock of the Companymatters related to any Material Contract;
(cv) split, combine terminate (either partially or reclassify completely) or cancel any Material Contract (other than terminations in the Ordinary Course upon the expiration of the outstanding shares or classes of capital stock of the Company;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Propertysuch Material Contract);
(ivi) make cause or permit any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws acceleration of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into terms under any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Material Contract;
(qvii) compromisecreate or permit to exist any new Encumbrance (other than Permitted Encumbrances) upon the Roughrider Mining Rights, whether tangible or intangible;
(viii) institute, settle, grant cancel or compromise any waiver Proceeding whose determination may result in modification or release relating tochange to or affect in any way the perimeter, surface or otherwise adjust, any Claim of other right comprising the Company or that imposes non-monetary reliefRoughrider Mining Rights;
(rix) take other than in connection with the Vendor Reorganization, make or omit change any Tax election, change an annual accounting period, adopt or change any Tax accounting method, file any amended Tax Return, settle any Tax claim or assessment, waive or agree to extend the statute of limitations for the assessment of any Tax, surrender any right to claim a refund of Taxes or otherwise take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreementsimilar action; or
(ux) agree authorize or commit enter into any agreement, contract or commitment to do any of the foregoing or authorize, take or agree to take (or fail to take) any action with respect to the foregoing.
Appears in 1 contract
Samples: Share Purchase and Sale Agreement (Uranium Energy Corp)
Conduct of Business Prior to Closing. During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or the Closing Date (the “Pre-Closing Period”), Seller the Company and Buyer shall use commercially reasonable efforts to: (i) cause preserve intact the present business organization of the Company to be formed and capitalizedor of Buyer, as applicable, and each to operate its Business in the shares Ordinary Course of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable LawsBusiness; (ii) maintain and preserve intact the business, assets and properties of the Company and of Buyer, as applicable; (iii) maintain existing business relationships with the employees, suppliers, distributors and customers of the Company or of Buyer, as applicable; (iv) maintain the books of account, records and files of the Company or of Buyer, as applicable, all in accordance with all applicable Lawsthe Ordinary Course of Business; (v) maintain in full force and effect the insurance policies described on Schedule 4.21 of the Company Disclosure Schedules (or the renewal or replacement policies of such policies) and Schedule 5.21 of the Buyer Disclosure Schedule; and (iiivi) inform Buyer the other Party in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a material breach of any representation, warranty or covenant set forth hereinherein (other than those representations and warranties that are qualified by materiality or any similar concept, of which each Party shall inform the other Party upon any breach), promptly, and in any event prior to the Closing Date and within two three (23) Business Days days after the occurrence of any such event or circumstances to Sellerthe Company’s Knowledge or Buyer’s Knowledge, as applicable. During the Pre-Closing Period, except: Except (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company Parties covenant that they shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyerthe other Party, which may be withheld, conditioned from and after the date of this Agreement and until the earlier of the Closing Date or delayed by Buyer the termination of this Agreement in accordance with its sole discretionterms:
(a) issue or sell any equity securities or debt securities of the Company;Company or Buyer, as applicable, which in the aggregate, amount to greater than ten (10) percent of the outstanding shares of the Company or Buyer, as applicable, as of the date hereof, other than (1) with respect to instruments outstanding as of the date hereof and either disclosed in public filings, in the case of the Buyer, or disclosed to the Buyer prior to the date hereof, in the case of the Company and (2) warrant(s) issuable upon exchange of the Buyer’s Series B Preferred Stock currently outstanding, which shall be exercisable (but not before Closing) into an aggregate number of shares Buyer Common Stock determined by the following formula: [$30,000,000/$0.15 (subject to adjustment for any stock splits, dividends, or similar occurrences which take place between the date hereof and the date of issuance of such shares)] – S Where S equals the total number of shares of Buyer Common Stock issued and outstanding as of the date of exercise, minus the Assignment Agreement Shares then issued and outstanding.
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the CompanyCompany or Buyer, as applicable;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the CompanyCompany or Buyer, as applicable, other than the reverse stock split currently being contemplated by the Buyer, for which shareholder approval has been received;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the CompanyCompany or Buyer, as applicable;
(e) declare, set aside or pay any dividend or other distribution, except for the declaration and payment of any cash dividend or distribution of cash equivalents, so long as any such cash dividends or distributions are made prior to the Closing Date;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to, any other Person, other than in the ordinary course of business and consistent with past practice, which shall be limited to any Personthe issuance of Debt which in the aggregate would not exceed $250,000, other than as specified in Section 4.5(d);
(g) subject any of the Company Company’s or Buyer’s assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, license, transfer, abandonment, lapse, cancellation or disposition of any of the Company Company’s or Buyer’s assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property)) in value greater than $10,000 in the aggregate, or disclose any Trade Secrets or other Proprietary Information, other than in the Ordinary Course of Business;
(i) make any commitments for capital expendituresexpenditures that aggregate in excess of $50,000;
(j) make any amendments to the Charter or Bylaws of the CompanyCompany or Buyer, as applicable;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAPGAAP (with respect to Buyer) or German Accounting Standards (HGB) (with respect to the Company);
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to such Party, in excess of $5,000 in the Companyaggregate, other than in the ordinary course of business;
(n) cancel or terminate any insurance policy naming the Company or Buyer, as applicable, as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the its Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the such Business or the Company’s or Buyer’s (as applicable) assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to a Company Material Contract or Buyer, as applicable, or enter into any ContractContract that would be a Company Material Contract or Buyer, as applicable, if it had been in effect on the date hereof;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim having a value in the aggregate in excess of the Company $10,000, or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a material breach of any of the representations or warranties set forth in Article IV or Article V of this Agreement, or, with respect to those representations and warranties that are qualified by materiality or any similar concept, a breach;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan or Buyer Benefit Plan, as applicable, except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan or Buyer Benefit Plan, as applicable (except as may be required by any applicable Law); ) or (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), except in the ordinary course of business pursuant to existing Company Benefit Plans or Buyer Benefit Plans, as applicable, or severance, that is paid or payable to any employee; (iii) hire any employeeemployee with an annual base salary, bonus, and commission in excess of $150,000; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement;
(u) cause or permit any acceleration or delay in the collection of notes or accounts receivable of the Company or Buyer, as applicable, in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course of Business;
(v) cause or permit any delay or acceleration in the payment of any account payable or other liability of the Company or Buyer, as applicable, beyond or in advance of its due date or the date when such account payable or other liability would have been paid in the Ordinary Course of Business;
(w) cause or permit any material change in the prices at which any products or services of the Company or Buyer, as applicable, are sold or distributed, or any offering of any rebates, discounts, commissions, incentives or inducements for the purchase of any products or services of the Company or Buyer, as applicable, that are materially different from those rebates, discounts, commissions, incentives or inducements offered by the Company or Buyer, as applicable, in the Ordinary Course of Business; or
(ux) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Spectrum Global Solutions, Inc.)
Conduct of Business Prior to Closing. During Except as permitted under this Section 6.1 (Conduct of Business Prior to the period between Closing), from the date of this Agreement until hereof to the earlier to occur of the Closing and the termination of this Agreement in accordance with Section 9.1 or the Closing Date (the “Pre-Closing Period”Termination), Seller shall the Company will and will cause each of the Company Subsidiaries to: (x) conduct its business and operations in the ordinary course of business consistent with past practices and use commercially reasonable efforts to: (i) cause to maintain, insure, repair and preserve intact the Company to be formed Properties and capitalized, its business organization consistent with past practice and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent without the prior written consent of the Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretionnot undertake any of the following actions:
(a) issue amend or sell any equity securities or debt securities of the Companysupplement its organizational documents;
(b) directly amend or indirectly purchasewaive any rights under any liability or property insurance in a manner that would reduce coverage amounts, redeem remove types of coverage or otherwise acquire endorsements, or dispose of any capital stock of the Companyincrease deductibles;
(c) splitissue, combine deliver, sell, pledge, dispose of or reclassify encumber any of the outstanding shares its equity interests, or classes of capital stock of the Companyany interests convertible into, or exchangeable or exercisable for, its equity interests;
(d) acquire equity interests of, or any interests convertible into, or exchangeable or exercisable for, equity interests of, any other Person;
(e) acquire any interest in real property;
(f) make any loans, advances or capital contributions to, any other Person (other than by and among the Company and its wholly-owned Subsidiaries);
(g) sell, pledge, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any Company Property;
(h) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization consolidation or other reorganization of the Companyrecapitalization;
(ei) declaremerge or consolidate with, set aside purchase substantially all the assets of, or pay any dividend otherwise acquire or other distribution;
(f) incurcombine with, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make hire any amendments to the Charter or Bylaws of the Companyemployees;
(k) make incur any material change Indebtedness for borrowed money or guarantee any such Indebtedness of another Person, except for Indebtedness which will be fully repaid prior to, or in connection with, the Company accounting methods or practices, other than as required by P.R.C. GAAPClosing;
(l) enter into into, materially amend or terminate any partnershipMaterial Contract or any Lease, limited liability company or joint venture agreementexcept for the termination of any interest rate hedging vehicles related to any Indebtedness of the Company and/or any Company Subsidiary and those agreements set forth on Schedule 4.15(a)(i) attached hereto;
(m) waive make any change in any method of accounting or release any rights of material valueaccounting practice or policy, or cancel, compromise, release or assign any material indebtedness owed to the Companyexcept as required by applicable Law;
(n) cancel (i) make, change or terminate revoke any insurance policy naming material Tax election, (ii) file any Return except to the extent required by applicable Law or (iii) consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes, in each case, to the extent such action could materially affect the Buyer, or the Company as or any of the Company Subsidiaries, in a beneficiary taxable period (or a loss payable payee unless portion thereof) ending after the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or terminationClosing Date;
(o) enter into take any Contract by action that could reasonably be expected to, or fail to take any action the failure of which could reasonably be expected to, cause (a) the Business Company to fail to comply with the gross income, asset, distribution and shareholder ownership requirements of Sections 856 and 857 of the Code or otherwise fail to qualify as a REIT, (b) any Company Subsidiary to cease to be treated as any of a partnership, a disregarded entity for U.S. federal income tax purposes, QRS or TRS, as the case may be or (c) the Company or any of Company Subsidiary to be subject up to the assets Closing to any federal or properties of the Company would be bound state income tax or affected federal or state excise tax, assuming for this purpose that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line taxable year ends as of business in any geographic area or competing with any Personthe Closing;
(p) enter intofail to make a distribution the failure of which would subject the Company to federal income tax under Section 857(b) of the Code or excise tax under Section 4981 of the Code, terminate or make any material amendment assuming for the purpose of making the determination pursuant to any Contract;this clause (xvi) that the Company’s taxable year ends as of the Closing; or
(q) compromiseauthorize, settle, grant any waiver propose or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit agree in writing to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit to do any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rexford Industrial Realty, Inc.)
Conduct of Business Prior to Closing. During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 10.1 or the Closing Date (the “"Pre-Closing Period”"), Seller the Company Group, Sellers and Sellers' Representative shall use commercially reasonable efforts to: (i) cause preserve intact in all material respects the present business organization of the Company to be formed Group and capitalized, and operate the shares Business in the Ordinary Course of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable LawsBusiness; (ii) maintain and preserve intact the business, assets and properties of the Company Group; (iii) maintain existing business relationships with the Company Group's employees and suppliers, distributors and customers; (iv) maintain the books of account, records and files of the Company Group, all in accordance with all applicable Lawsthe Ordinary Course of Business; (v) not take any action for the specific purpose of manipulating or artificially inflating the Consolidated Net Assets; (vi) maintain in full force and effect the insurance policies described on Schedule 4.21 (or the renewal or replacement policies of such policies) and (iiivii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s the Company Group's Knowledge. During the Pre-Closing Period, exceptExcept: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company Group, Sellers and Sellers' Representative covenant that they shall not, and Seller shall cause each member of the Company Group not to, absent the prior written consent of Buyer, which may consent shall not be unreasonably withheld, conditioned or delayed by Buyer delayed, from and after the date of this Agreement and until the earlier of the Closing Date or the termination of this Agreement in accordance with its sole discretionterms:
(a) issue or sell any equity securities or debt securities of any member of the CompanyCompany Group;
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of any member of the CompanyCompany Group;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of any member of the CompanyCompany Group;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any member of the CompanyCompany Group;
(e) declare, set aside or pay any dividend or other distributiondistribution without the written approval in advance by Buyer (which approval shall not be withheld if Buyer has determined that it will not pursue a Business Combination unless such dividend or distribution would be reasonably expected to result in Consolidated Net Assets being less than the Target Net Assets);
(f) incur, assume or guarantee any Company Debt or make any loans or advances to to, any other Person;
(g) subject any of the Company Group's material assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company Group's material assets (real, personal or mixed, tangible or intangible, including the Company Group Intellectual Property)) other than transactions in the Ordinary Course of Business;
(i) make any commitments for capital expendituresexpenditures that aggregate in excess of $50,000;
(j) make any amendments to the Charter or Bylaws of a member of the CompanyCompany Group;
(k) make any material change in the Company Group's accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to a member of the CompanyCompany Group;
(n) cancel or terminate any material insurance policy naming a member of the Company Group as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company Group would be bound or affected that restricts in any material respect the operation of the Business or the Company’s Company Group's assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to a Material Contract, or enter into any ContractContract that would be a Material Contract if it had been in effect on the date hereof, other than in the Ordinary Course of Business with written approval in advance by Buyer;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of a member of the Company Group having a value in the aggregate in excess of $50,000, or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), except in the ordinary course of business pursuant to existing Company Benefit Plans, or severance, that is paid or payable to any employee; (iii) hire any employeeemployee without Buyer's prior written consent; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
or (u) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of Business Prior to Closing. During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 9.1 or the Closing Date (the “Pre-Closing Period”), Seller the Company, Sellers and Buyer shall use commercially reasonable efforts to: (i) cause preserve intact the present business organization of the Company to be formed and capitalizedor of Buyer, as applicable, and each to operate its Business in the shares Ordinary Course of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable LawsBusiness; (ii) maintain and preserve intact the business, assets and properties of the Company and of Buyer, as applicable; (iii) maintain existing business relationships with the employees, suppliers, distributors and customers of the Company or of Buyer, as applicable; (iv) maintain the books of account, records and files of the Company or of Buyer, as applicable, all in accordance with all applicable Lawsthe Ordinary Course of Business; (v) maintain in full force and effect the insurance policies described on Schedule 4.21 of the Seller Disclosure Schedules (or the renewal or replacement policies of such policies) and Schedule 5.21 of the Buyer Disclosure Schedule; and (iiivi) inform Buyer the other Party in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a material breach of any representation, warranty or covenant set forth hereinherein (other than those representations and warranties that are qualified by materiality or any similar concept, of which each Party shall inform the other Party upon any breach), promptly, and in any event prior to the Closing Date and within two three (23) Business Days days after the occurrence of any such event or circumstances to Sellerthe Company’s Knowledge or Buyer’s Knowledge, as applicable. During the Pre-Closing Period, except: Except (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.16.1 of the Seller Disclosure Schedules or the Buyer Disclosure Schedules, as applicable, the Company Parties covenant that they shall not, and Seller and, in the case of Sellers, shall cause the Company not to, absent the prior written consent of Buyerthe other Party, which may be withheld, conditioned from and after the date of this Agreement and until the earlier of the Closing Date or delayed by Buyer the termination of this Agreement in accordance with its sole discretionterms:
(a) issue or sell any equity securities or debt securities of the CompanyCompany or Buyer, as applicable;
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the CompanyCompany or Buyer, as applicable;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the CompanyCompany or Buyer, as applicable;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the CompanyCompany or Buyer, as applicable;
(e) declare, set aside or pay any dividend or other distribution, except for the declaration and payment of any cash dividend or distribution of cash equivalents, so long as any such cash dividends or distributions are made prior to the Closing Date;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to to, any other Person;
(g) subject any of the Company Company’s or Buyer’s assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, license, transfer, abandonment, lapse, cancellation or disposition of any of the Company Company’s or Buyer’s assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property)) in value greater than $10,000 in the aggregate, or disclose any Trade Secrets or other Proprietary Information, other than in the Ordinary Course of Business;
(i) make any commitments for capital expendituresexpenditures that aggregate in excess of $10,000;
(j) make any amendments to the Charter or Bylaws of the CompanyCompany or Buyer, as applicable;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to such Party, in excess of $5,000 in the Companyaggregate;
(n) cancel or terminate any insurance policy naming the Company or Buyer, as applicable, as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the its Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the such Business or the Company’s or Buyer’s (as applicable) assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to a Company Material Contract or Buyer Material Contract, as applicable, or enter into any Contract that would be a Company Material Contract or Buyer Material Contract, as applicable, if it had been in effect on the date hereof;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim having a value in the aggregate in excess of the Company $10,000, or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a material breach of any of the representations or warranties set forth in Article Article IV or Article V of this Agreement, or, with respect to those representations and warranties that are qualified by materiality or any similar concept, a breach;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan or Buyer Benefit Plan, as applicable except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan or Buyer Benefit Plan, as applicable (except as may be required by any applicable Law); ) or (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), except in the ordinary course of business pursuant to existing Company Benefit Plans Buyer Benefit Plans, as applicable, or severance, that is paid or payable to any employee; (iii) hire any employeeemployee with an annual base salary, bonus, and commission in excess of $150,000; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement;
(u) cause or permit any acceleration or delay in the collection of notes or accounts receivable of the Company or Buyer, as applicable, in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course of Business;
(v) cause or permit any delay or acceleration in the payment of any account payable or other liability of the Company or Buyer, as applicable, beyond or in advance of its due date or the date when such account payable or other liability would have been paid in the Ordinary Course of Business;
(w) cause or permit any material change in the prices at which any products or services of the Company or Buyer, as applicable, are sold or distributed, or any offering of any rebates, discounts, commissions, incentives or inducements for the purchase of any products or services of the Company or Buyer, as applicable, that are materially different from those rebates, discounts, commissions, incentives or inducements offered by the Company or Buyer, as applicable, in the Ordinary Course of Business; or
(ux) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Spectrum Global Solutions, Inc.)
Conduct of Business Prior to Closing. During Prior to the period between Closing, the date of this Agreement until Shareholders will cause the earlier Company to occur of (i) conduct the termination of this Agreement Business only in accordance the ordinary course consistent with Section 9.1 or the Closing Date past practices and (the “Pre-Closing Period”), Seller shall ii) use commercially reasonable efforts to preserve the business organization of the Business intact, all to the end that it may preserve the goodwill and business relationships of the Business with employees, customers, clients, suppliers and others, other than Hollxxxxx, Xxc. and the Chicago Sun Times. Without limiting the generality of the foregoing, except as set forth on Section 6.6 of the Disclosure Schedule, the Shareholders will not permit, without the prior consent of the Buyer, the Company to (a) increase the compensation (including, but not limited to: , bonus) payable on or after Closing or to become payable on or after Closing to any employee of the Company, except with respect to any employee who is not a Shareholder or a relative of any Shareholder, in the ordinary course of business in accordance with past practices, (b) sell or permit the sale of advertising or subscription orders for the Publications, or enter into other transactions, at rates or prices lower than the rates and prices in effect for such transactions on the date hereof, other than volume discounts offered to advertisers in the ordinary course of business at levels consistent with past practices and other than promotion discounts offered to subscribers in the ordinary course of business consistent with past practices, (c) alter its methods, practices or terms in respect of billing or collection of accounts receivable or sale of subscriptions or pre-paid advertising, (d) incur any Liability other than Permitted Liabilities, (e) make any dividend or distribution of assets to any Shareholder or other person, entity or business organization except as expressly contemplated by Section 6.10, (f) incur any Indebtedness, (g) consummate any repurchase or redemption, or agreed to repurchase or redeem, any shares of its capital stock, any options or other rights to acquire such stock or any securities convertible into or exchangeable for such stock, (h) amend its certificate or articles of incorporation, by-laws, or other organizational documents, (i) cause the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(a) issue or sell agree to issue any equity securities or debt securities of the Company;
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company;
(c) split, combine or reclassify any of the outstanding additional shares or classes of capital stock of the Company;
(d) adopt a plan any class or series, or any securities convertible into or exchangeable for shares of complete capital stock, or partial liquidationany options, dissolutionwarrants, merger, consolidation, restructuring, recapitalization or other reorganization rights to acquire any shares of the Company;
(e) declarecapital stock, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practicespayment, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Lawloan, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Group Operating Inc)
Conduct of Business Prior to Closing. During the period between From the date of hereof until the Closing, except as otherwise provided in this Agreement until or consented to in writing by GTI PA (which consent shall not be unreasonably withheld or delayed), Contributors shall, and shall cause the earlier Company to, (x) conduct the Business in the ordinary course of business materially consistent with past practice; (y) use reasonable best efforts to occur maintain and preserve intact the current organization, Business and franchise of the termination Company and to preserve the rights, goodwill and relationships of this Agreement in accordance its employees, customers, lenders, suppliers, regulators and others having Business relationships with Section 9.1 or the Closing Date Company; and (z) adhere to the following negative covenants (the “Pre-Closing PeriodNegative Covenants”), Seller shall use commercially reasonable efforts to: ):
(i) cause the Company to be formed and capitalizedsell, and the shares convey, assign, transfer or otherwise dispose of any of the Company’s capital stockassets material to the operation of the Company’s business, including without limitation, the Shares, to be issuedPermits, in accordance a manner outside of the ordinary course of business as consistent with all applicable Laws; past practices;
(ii) maintain engage in the books of account, records and files sale of the Company in accordance with all applicable Laws; and Company’s business (whether via a sale of assets or equity or debt securities), or any portion thereof, and/or any extraordinary transactions;
(iii) inform Buyer in writing permit any issuance of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(a) issue or sell any equity securities or debt securities of the Company, except to Firefly Holdco;
(biv) directly or indirectly purchase, redeem or otherwise acquire or dispose of permit any capital stock of the Company;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the Company;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of distributions by the Company assets (realin cash, personal in kind, or mixed, tangible or intangible) to any Lienotherwise, except for Permitted Liens;
(h) permit or allow to enable the sale, lease, transfer, abandonment, cancellation or disposition members to pay taxes on their share of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments income pursuant to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties conditions set forth in Article IV of this Agreement or the Management Services Agreement;
(sv) enter permit the Company to be merged, consolidated or otherwise reorganized with or into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employeesother entity;
(tvi) adopt or authorize permit any Company Benefit Plan except as may be required by amendment to its organizational documents, including, without limitation, any applicable Lawarticles of organization, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature ofoperating agreements, or prepay, any other governing documents providing for the compensation (including wages, salaries and bonuses), internal organization or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow management of the renewal of or entering into, any employment or consulting agreementCompany; or
(uvii) agree permit the dissolution or commit to do any liquidation of the Company.
(viii) Notwithstanding the foregoing, Contributors shall have no liability for the breach of this Section 6(b) if (i) the breach is caused by the actions or omissions of Vision and (ii) the breach is not caused by the actions or omissions of any Contributor or any breach or violation of the Management Services Agreement by any Contributor.
Appears in 1 contract
Samples: Contribution Agreement
Conduct of Business Prior to Closing. During Except as provided or permitted herein, as set forth in Schedule 4.1 or as consented to by Purchaser (which consent shall not be unreasonably withheld), during the period between commencing on the Agreement Date and ending at the Closing or such earlier date of as this Agreement until the earlier to occur of the termination of this Agreement may be terminated in accordance with Section 9.1 or the Closing Date its terms (the “Pre-Closing Period”), Seller the Company shall use commercially reasonable efforts to: to (ia) cause act and carry on its business in the Company to be formed Ordinary Course, (b) maintain and capitalized, and the shares of preserve in all material respects the Company’s capital stockbusiness organization, including assets, properties (reasonable wear and tear excluded) and relationship with customers, suppliers, employees and others having business dealings with them, (c) perform and comply with the Shares, to be issued, in accordance Material Contracts and comply with all applicable Laws; , (iid) maintain their respective books and records in the books of accountusual, records regular and files ordinary manner, on a basis consistent with past practice, (e) continue to collect accounts receivable and pay accounts payable in the Ordinary Course, and (f) preserve their goodwill and ongoing operations. Without limiting the generality of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event foregoing, except as expressly provided or circumstance that has contemplated by this Agreement, as required by Law or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant as set forth hereinin Schedule 4.1, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During during the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall notnot directly or indirectly, and Seller shall cause do any of the Company not to, absent following without the prior written consent of BuyerPurchaser (which consent shall not be unreasonably withheld), which may be withheldin each case, conditioned or delayed by Buyer other than in its sole discretionthe Ordinary Course:
(a) issue or sell any equity securities or debt securities of the Company;
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company;
(c) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities or other Equity Interests in respect of, in lieu of or in substitution for shares of its Capital Stock;
(b) authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities or Equity Interests (other than the issuance of shares of Capital Stock upon the exercise of Options or Warrants that are outstanding shares on the Agreement Date);
(c) amend or classes make any change to the Organizational Documents of capital stock the Company, or change the authorized Capital Stock or Equity Interests of the Company;
(d) (i) incur any Indebtedness (or obtain any new or additional commitment from any Person to provide any such Indebtedness, except for borrowings under the Company’s existing credit facilities that will be fully satisfied at the Closing), (ii) issue, sell or amend any debt securities of the Company, (iii) guarantee any debt securities of another Person, (iv) make any loans, advances (other than routine advances not in excess of $1,000 to employees of the Company in the Ordinary Course) or capital contributions to, or investment in, any other Person, other than the Company; or (v) create any Lien on any material assets of the Company other than a Permitted Lien;
(e) (i) make any material change in its borrowing arrangements or (ii) knowingly waive, release, write off or assign any material rights or claims;
(f) materially change accounting policies or procedures, except as required by applicable Laws or by GAAP;
(g) except as required by applicable Laws or under the terms of any Employee Benefit Plan as of the Agreement Date, (i) adopt, amend or terminate any Employee Benefit Plan (including any underlying agreements), except as required to maintain the qualified status of such Employee Benefit Plan, (ii) increase or grant any increase in the compensation, bonus or benefits of, or pay, grant or promise any bonus to, any current or former employee, director or independent contractor other than (A) base salary increases made in the Ordinary Course that do not exceed individually, 5% per employee, and, in the aggregate, 1% of the overall total salary paid by the Company, in either case, as compared with the individual and aggregate salaries paid by the Company as of immediately prior to the Agreement Date, or (B) bonuses to be paid to employees as of the Closing Date (collectively, “Closing Bonuses”), which such Closing Bonuses will be treated as a Company Transaction Expense, (iii) grant or pay any severance or change in control pay or benefits to, or otherwise increase the severance or change in control pay or benefits of, any current or former employee, director or independent contractor other than Closing Bonuses, (iv) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Employee Benefit Plan, or (v) hire or fire (other than for cause) any employee with an annual base salary in excess of $150,000;
(h) make any capital expenditure other than those set forth in the Company’s annual budget;
(i) acquire, sell, lease, pledge or otherwise dispose of or encumber any material properties or material assets of the Company other than purchases or inventory or fixed assets in the Ordinary Course;
(j) license any Company IP, other than non-exclusive licenses granted in the Ordinary Course;
(k) terminate, abandon, withdraw or otherwise fail to maintain any Company Registered IP;
(l) make, revoke or change any material Tax election or method of Tax accounting, enter into any closing agreement, settle or compromise any liability with respect to Taxes, or consent to any claim or assessment relating to Taxes or waive the statute of limitations for any such claim or assessment, except as required by applicable Law;
(m) amend or terminate, or waive any right under, any Material Contract;
(n) settle or compromise any litigation or other disputes;
(o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Companyreorganization;
(ep) declare, set aside declare or pay any non-cash dividend or other distributionmake any cash distribution after the delivery of the Closing Certificate in respect of any of its Capital Stock;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(kq) make any material change in the Company accounting methods to, fail to renew or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate otherwise allow any insurance policy naming applicable to the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relieflapse;
(r) take enter into new lines of business or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach discontinue an existing line of any of the representations or warranties set forth in Article IV of this Agreement;business; or
(s) enter into any labor or collective bargaining agreement or make any agreement, commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit undertaking to do any of the foregoingactivities prohibited by the foregoing provisions. Except with respect to Purchaser’s approval rights set forth in this Section 4.1, nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations and shall be permitted to use cash on hand to pay down existing Indebtedness.
Appears in 1 contract
Conduct of Business Prior to Closing. During Except as expressly provided or permitted herein, as set forth in Schedule 6.1 or as consented to or requested in writing by Parent, which consent shall not be unreasonably withheld, conditioned or delayed, during the period between commencing on the date of this Agreement until and ending at the Effective Time or such earlier to occur of the termination of date as this Agreement may be terminated in accordance with Section 9.1 or the Closing Date its terms (such period is referred to as the “Pre-Closing Period”), Seller the Company shall use commercially reasonable efforts to: to (ia) cause act and carry on its business in the Company ordinary course of business consistent with past practice, (b) maintain and preserve its business organization, assets and properties, (c) continue to be formed and capitalizedperform in all material respects under existing Material Contracts in effect on the date hereof (for the respective terms provided in such contracts), and (d) preserve the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files current relationships of the Company in accordance with all applicable Laws; customers and (iii) inform Buyer in writing suppliers with which the Company has significant business relations. Without limiting the generality of any event the foregoing, except as expressly provided or circumstance that has permitted herein or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant as set forth hereinin Schedule 6.1, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During during the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause directly or indirectly, other than in the Company not toordinary course of business, absent do any of the following without the prior written consent of BuyerParent, which may consent shall not be unreasonably withheld, conditioned or delayed by Buyer in its sole discretiondelayed:
(a) issue (A) declare, set aside or sell pay any equity dividends on, or make any other distributions (whether in cash, securities or debt securities other property) in respect of, any of the Company;
its capital stock, (b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company;
(cB) split, combine or reclassify any of the outstanding shares or classes of its capital stock or issue or authorize the issuance of the Company;
any other securities in respect of, in lieu of or in substitution for its capital stock or any of its other securities, or (dC) adopt a plan purchase, redeem or otherwise acquire any of complete its capital stock or partial liquidationany securities or obligations convertible into or exchangeable for any of its capital stock or any other of its securities or any rights, dissolution, merger, consolidation, restructuring, recapitalization warrants or options to acquire any such capital stock or other reorganization securities, except, in the case of this clause (C), for the Company;
(e) declareacquisition of Class A Common Stock from former employees, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any members of the Company assets (real, personal or mixed, tangible or intangible) to Board and consultants in accordance with agreements providing for the repurchase of Class A Common Stock in connection with any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition termination of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed services to the Company;
(nb) cancel authorize for issuance, issue or terminate any insurance policy naming the Company as a beneficiary sell or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit to do issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any class or any other securities or equity equivalents, other than the foregoing.issuance of shares of Capital Stock upon the exercise of Vested Company Options or Company Warrants;
Appears in 1 contract
Samples: Merger Agreement (Irobot Corp)
Conduct of Business Prior to Closing. During Except as expressly permitted in this Section 6.1, set forth in Schedule 6.1 or as consented to in writing by Buyer, during the period between commencing on the date of this Agreement until and ending at the Effective Time or such earlier to occur of the termination of date as this Agreement may be terminated in accordance with Section 9.1 or the Closing Date its terms (the “Pre-Closing Period”), Seller the Company shall, and shall cause each of its Subsidiaries to, (a) act and carry on its business in the ordinary course of business consistent with past practice and comply with all applicable Laws, (b) use commercially reasonable efforts to: to maintain and preserve its and each of its Subsidiaries’ business organization, assets and properties and existing relationships and goodwill with customers, suppliers, creditors, lessor, sub-lessees and employees and (ic) cause the Company use commercially reasonable efforts to be formed protect, defend and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of accountownership, records validity and files registration of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing Intellectual Property. Without limiting the generality of any event the foregoing, except as expressly permitted herein or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant as set forth hereinin Schedule 6.1 and except that the Company may renew or extend its existing revolving credit facility with JPMorgan Chase Bank N.A. (but may not borrow under such facility without the prior written consent of Buyer), promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During during the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not permit any of its Subsidiaries to, absent directly or indirectly, do any of the following without the prior written consent of Buyer, Buyer (which may consent shall not be unreasonably withheld, conditioned or delayed by Buyer in its sole discretion:):
(a) except as set forth in Schedule 6.1(a), split, subdivide, combine, redeem or reclassify, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock or issue or sell authorize the issuance of any equity other securities in respect of, in lieu of or debt in substitution for shares of its capital stock or any of its other securities (it being understood that the foregoing will not apply to the forfeiture of Company Restricted Stock or the acquisition of Company Restricted Stock for nominal or de minimis consideration, in each case in accordance with the terms of the Companyapplicable outstanding Company Restricted Stock agreement as in effect on the date of this Agreement);
(b) directly except as set forth in Schedule 6.1(b), authorize for issuance, issue, sell, pledge, dispose of, grant, transfer, encumber, or indirectly purchaseauthorize the issuance, redeem sale, pledge, disposition, grant, transfer, lease, license, guarantee or otherwise acquire encumbrance of, any shares of its capital stock or dispose of any its Subsidiaries (other than the issuance of shares by its wholly-owned Subsidiary to it or another of its wholly-owned Subsidiaries), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities (other than the issuance of shares of Common Stock upon the Companyexercise of outstanding Company Options, in accordance with their terms or upon the conversion of any shares of Convertible Preferred Stock, in each case, that are outstanding on the date of this Agreement);
(c) splitmake any change to the Certificate of Incorporation or By-laws or the organizational documents of its Subsidiaries, combine or reclassify any of change the outstanding shares or classes of authorized capital stock of the Company;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim equity interests of the Company or that imposes non-monetary reliefany Subsidiary;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
(u) agree or commit to do any of the foregoing.
Appears in 1 contract
Conduct of Business Prior to Closing. During the period between the date of this Agreement until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or the Closing Date (the “Pre-Closing Period”), Seller shall use commercially reasonable efforts to: (i) cause the Company to be formed and capitalized, and the shares of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with the consummation of the Transactions or (y) as provided on Schedule 6.1, the Company shall not, and Seller shall cause the Company not to, absent the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretion:
(a) issue or sell any equity securities or debt securities of the Company;
(b) directly or indirectly purchase, redeem or otherwise acquire or dispose of any capital stock of the Company;
(c) split, combine or reclassify any of the outstanding shares or classes of capital stock of the Company;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company;
(e) declare, set aside or pay any dividend or other distribution;
(f) incur, assume or guarantee any Company Debt or make any loans or advances to any Person;
(g) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
(h) permit or allow the sale, lease, transfer, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property);
(i) make any commitments for capital expenditures;
(j) make any amendments to the Charter or Bylaws of the Company;
(k) make any material change in the Company accounting methods or practices, other than as required by P.R.C. GAAP;
(l) enter into any partnership, limited liability company or joint venture agreement;
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(o) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business or the Company’s assets or properties, from engaging in any line of business in any geographic area or competing with any Person;
(p) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating to, or otherwise adjust, any Claim of the Company or that imposes non-monetary relief;
(r) take or omit to take any action which if taken or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering into, any employment or consulting agreement; or
or (u) agree or commit to do any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (You on Demand Holdings, Inc.)
Conduct of Business Prior to Closing. (a) During the period between from the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement in accordance with Section 9.1 or the Closing Date Effective Time, the Company shall, and shall cause the other Group Companies to (i) conduct the “Pre-Closing Period”Business in all material respects in the ordinary course of business consistent with commercially reasonable practice (including maintaining a sufficient level of working capital to satisfy the needs of its daily operations), Seller shall and (ii) use its commercially reasonable efforts to: (i) cause to maintain satisfactory relationships with customers and others having material business relationships with them, except with the Company to be formed and capitalized, and the shares prior written consent of the Company’s capital stock, including the Shares, to be issued, in accordance with all applicable Laws; (ii) maintain the books of account, records and files of the Company in accordance with all applicable Laws; and (iii) inform Buyer in writing of any event VisionChina or circumstance that has or would reasonably be expected to have, a Material Adverse Effect, or which constitutes a breach of any representation, warranty or covenant set forth herein, promptly, and in any event prior to the Closing Date and within two (2) Business Days after the occurrence of any such event or circumstances to Seller’s Knowledge. During the Pre-Closing Period, except: (x) as specifically contemplated by this Agreement or any documents or instruments executed in connection with (such exceptions, the consummation “Conduct of Business Exceptions”). Without limiting the generality of the Transactions or (y) as provided on Schedule 6.1foregoing, except for the Conduct of Business Exceptions, the Company shall not, and Seller shall cause the not permit any other Group Company not to, absent directly or indirectly, do any of the prior written consent of Buyer, which may be withheld, conditioned or delayed by Buyer in its sole discretionfollowing:
(ai) purchase, sell or issue any of its capital stock or sell other equity interests or grant or make any option, subscription, warrant, call, commitment or agreement of any character in respect of their capital stock or other equity securities or debt securities of the Companyinterests;
(bii) directly declare, set aside, issue or indirectly purchasepay any dividends or other distribution, in cash or in kind, in respect of its shares of capital stock or repurchase, redeem or otherwise acquire or dispose any of any its outstanding shares of capital stock of the Companyor other securities or other ownership interests;
(ciii) conduct any split, combine recombination or reclassify any reclassification or issuance of the outstanding shares or classes of its capital stock of the Companyor similar ownership interests;
(div) adopt acquire, lease, license, assign, sell, transfer or dispose of, or create, incur or permit to exist any Encumbrance on any property, rights, businesses or assets (including Intellectual Property) except (A) in the ordinary course of business consistent with past practice involving amounts not exceeding RMB1,000,000 in the aggregate with other Group Companies and (B) capital expenditures permitted by clause (vi) below;
(v) (A) enter into any proposed transaction or series of related transactions involving a plan change of complete or partial liquidation, dissolutioncontrol, merger, consolidation, restructuringrecapitalization, recapitalization reorganization or other reorganization of the Companybusiness combination, or liquidation, dissolution or winding up, or (B) establish, enter into or terminate any joint venture, partnership or any non-wholly owned subsidiary;
(evi) declare, set aside or pay any dividend or make capital expenditures except in the ordinary course of business consistent with past practice not in excess of RMB1,000,000 in the aggregate with other distributionGroup Companies;
(fvii) incur, assume or guarantee any Company Debt Indebtedness or make any loans payments or advances disbursements to any Personcreditors other than in the ordinary course of business consistent with past practice not in excess of RMB1,000,000 in the aggregate with other Group Companies;
(gviii) subject any of the Company assets (real, personal or mixed, tangible or intangible) to any Lien, except for Permitted Liens;
the matters set forth in Schedule 4.1(a)(viii), engage in any transactions (hincluding transfers of assets) permit with, enter into any Contract with, waive any right or allow claims against, make any payments to or on behalf of, or assume, incur, waive or settle Liabilities for the salebenefit of, leaseany DMG Shareholder or any other Related Party (together with the matters, transferactions and occurrences set forth in clause (ii) above, abandonment, cancellation or disposition of any of the Company assets (real, personal or mixed, tangible or intangible, including the Company Intellectual Property“Leakage”);
(iix) make incur any commitments for capital expendituresEncumbrance on any material assets;
(jx) increase the compensation of directors or employees of the Group Companies other than as required by any agreement in effect as of the date hereof or as required by Law; provided, that the Company shall be allowed to make any amendments a one-time cash bonus payment to the Charter or Bylaws certain of the Company’s officers and employees in an aggregate amount not to exceed RMB10,000,000;
(kxi) make any material change in the Company accounting methods or practices, practices (other than as such changes that have been required by P.R.C. Law or GAAP);
(lxii) enter into amend, supplement, waive, modify, terminate, annul, cancel, allow to lapse, assign, convey, encumber or otherwise transfer its rights and interests in or under any partnership, limited liability company or joint venture agreementmaterial provisions of any Material Contract (including any advertising rights Contract);
(m) waive or release any rights of material value, or cancel, compromise, release or assign any material indebtedness owed to the Company;
(n) cancel or terminate any insurance policy naming the Company as a beneficiary or a loss payable payee unless the same shall be replaced with one or more insurance policies providing coverage reasonably comparable in scope and terms and Buyer has been provided with prompt written notice of such cancellation or termination;
(oxiii) enter into any Contract by which the Business or any of the assets or properties of the Company would be bound or affected that restricts in any material respect the operation of the Business Group Company or the Company’s assets or properties, its Affiliates from engaging in any line of business in any geographic area or competing with any PersonPerson that materially impairs the operation of the business of the Group Companies, individually or taken as a whole;
(pxiv) enter into, terminate or make any material amendment to any Contract;
(q) compromise, settle, grant any waiver or release relating tounder any confidentiality or similar agreement;
(xv) change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund;
(xvi) other than (A) as required by any agreement in effect as of the date hereof or (B) as required by Law, enter into, adopt or amend any employment agreement or employee benefit plan with or for the benefit of any of its employees or grant any severance, termination or change of control pay to any director or employee;
(xvii) enter into any collective bargaining agreements;
(xviii) purchase, cancel or terminate any insurance policy naming any of the Group Companies as a beneficiary or a loss payee;
(xix) cancel, waive or settle any Action in excess of RMB1,000,000 in the aggregate with other Group Companies, or otherwise adjust, agree to any Claim of the Company or that imposes non-monetary relief;
(r) take , or omit to take any action which if taken commence or omitted prior to the date hereof would constitute a breach of any of the representations or warranties set forth in Article IV of this Agreement;
(s) enter into any labor waiver, release, assignment, compromise or collective bargaining agreement or make any commitment or incur any liability to any labor organization relating to its employees;
(t) adopt or authorize any Company Benefit Plan except as may be required by any applicable Law, or: (i) establish or materially increase any benefit under any Company Benefit Plan (except as may be required by any applicable Law); (ii) increase or otherwise change the rate or nature settlement of, or prepay, the compensation (including wages, salaries and bonuses), or severance, that is paid or payable to take any employee; (iii) hire any employee; or (iv) enter into, renew or allow the renewal of or entering intomaterial action with respect to, any employment pending or consulting agreementthreatened Action which is material or which relates to the transactions contemplated hereby (xx) amend any of its organizational documents; or
(uxxi) agree or commit to do any of the foregoing.
(b) If the Company desires to take an action that would be prohibited pursuant to Section 4.1(a) hereof without written consent of VisionChina, prior to taking such action the Company may request such written consent by sending an e-mail to the following individuals or to such other individual VisionChina may have furnished to the Company in writing, who VisionChina shall cause to respond to such request for written consent within two (2) Business Days: Xxxxx Xxxx Email: xxxxx.xxxx@xxxxxxxxxxx.xx cc: Xxxxx Xxx (xxxx@xxxxxx.xxx)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Visionchina Media Inc.)