Conduct of Business Prior to the Effective Time. (a) Except as set forth in Section 5.01(a) of the Company Disclosure Schedule, between the date hereof and the Effective Time, the Company shall not, and shall not permit any Subsidiary to, conduct the Business other than in the ordinary course and consistent with the Company's and the Subsidiaries' past practice, except as expressly permitted by this Agreement or as agreed to by Nu Skin in writing. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Company Disclosure Schedule, the Company shall, and shall cause each Subsidiary to, (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice or existing business plans previously disclosed to Nu Skin; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use commercially reasonable efforts, consistent with past practices and policies or existing business plans approved in writing by Nu Skin, to (A) preserve intact its business organization and the business organization of the Business, (B) keep available to Nu Skin and Merger Sub the services of its employees, (C) except with respect to the intended purchase of "tail" director and officer insurance, continue in full force and effect without material modification all existing policies or binders of insurance currently maintained thereby for the Company, the Subsidiaries and/or the Business, and (D) preserve its current relationships with its customers, suppliers and other persons with which it has significant business relationships; (iv) exercise, but only after notice to Nu Skin and receipt of Nu Skin's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases listed in Section 3.17(b) of the Company Disclosure Schedule which by their terms would otherwise expire prior to the Effective Time; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which would reasonably be expected to cause any representation or warranty of the Company to be untrue, incomplete or incorrect in any material respect or result in a breach in any material respect of any covenant made by the Company in this Agreement. (b) Except as set forth in Section 5.01(b) of the Company Disclosure Schedule, prior to the Effective Time the Company shall not, and shall not permit any Subsidiary to, without the prior written consent of Nu Skin, do any of the things enumerated in clauses (i) through (xxiv) and clause (xxvii) of the second sentence of Section 3.10 of this Agreement or take any action which could reasonably be expected to result in a Material Adverse Effect. (c) For the period from the date hereof through the time of the Closing, the Company covenants and agrees to maintain the level, mix and quality of inventories consistent with those generally maintained by the Company prior to the date hereof or with existing business plans previously disclosed to Nu Skin.
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Samples: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Conduct of Business Prior to the Effective Time. (a) Except as set forth in Section 5.01(a) Each of the Shareholders and the Company Disclosure Schedule, between covenants and agrees that from the date hereof and through the Effective Timeearlier of the Closing Date or the termination of this Agreement, none of the Company, the Company Subsidiary or the LLC Subsidiary shall not, and shall not permit any Subsidiary to, conduct the Business its business other than in the ordinary course and consistent with the Company's, the Subsidiary's or the LLC Subsidiary's prior practice in order to protect the value of the Company, the Subsidiary and the Subsidiaries' past practice, except as expressly permitted by this Agreement or as agreed to by Nu Skin in writingLLC Subsidiary. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Shareholders shall cause the Company, the Subsidiary, and the LLC Subsidiary, and the Company Disclosure Scheduleagrees, the Company shall, and shall cause each Subsidiary to, to (i) continue its their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice or existing operations, and business plans previously disclosed to Nu Skinplan implementation; (ii) not materially shorten or lengthen the customary payment cycles for any of its their payables or receivables; (iii) use commercially reasonable efforts, consistent with past practices and policies or existing business plans approved in writing by Nu Skin, efforts to attempt to (A) preserve intact its business organization keep available to the Parent and the business organization Parent Sub the services of the Businessemployees of the Company, (B) keep available to Nu Skin and Merger Sub the services of its employees, (C) except with respect to the intended purchase of "tail" director and officer insurance, continue in full force and effect without material modification all existing policies or binders of insurance currently maintained thereby for in respect of the Company, Company and the Subsidiaries and/or the Business, Business except as required by applicable law and (DC) preserve its their current relationships with its customerstheir suppliers, suppliers employees, customers and other persons with which it has they have significant business relationships; (iv) exercise, but only after notice to Nu Skin the Parent and receipt of Nu Skinthe Parent's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases listed set forth in Section 3.17(b3.19(b) or Leases for Tangible Personal Property set forth in Section 3.20(a) of the Company Disclosure Schedule which by their terms would otherwise expire prior expire; (v) maintain all material licenses, qualifications, registrations and authorizations to the Effective Timedo business in each jurisdiction in which they are so licensed, qualified, registered or authorized; and (vvi) not engage in any practice, take any action, fail to take any action or enter into any transaction transaction, in each case outside the normal course of business which would could reasonably be expected to cause any representation or warranty of the Shareholders or the Company to be untrue, incomplete or incorrect untrue for purposes of this Section 5.01(a) as of the date made in any material respect or result in a breach in any material respect of any covenant made by the Shareholders or the Company in this Agreement.
(b) Except as set forth in Section 5.01(b) Each of the Shareholders and the Company Disclosure Schedulecovenants and agrees that, prior to the Effective Time the Company shall not, and shall not permit any Subsidiary toTime, without the prior written consent of Nu Skinthe Parent, do any which consent will not be unreasonably withheld, none of the things enumerated Company, the Subsidiary or the LLC Subsidiary will make outside the ordinary course of business consistent with past practice any commitment, actual or contingent, to make any investment or capital contribution, or otherwise expend capital, or purchase any inventory, or supply funds to any Person, in clauses (i) through (xxiv) and clause (xxvii) each case in excess of $5,000 individually or $10,000 in the second sentence of Section 3.10 of this Agreement or take any action which could reasonably be expected to result in a Material Adverse Effectaggregate.
(c) For the period from the date hereof through the time Each of the Closing, Shareholders and the Company covenants and agrees to maintain the levelto, mix and quality of inventories consistent with those generally maintained by shall cause the Company prior to, use reasonable efforts to minimize the termination, withdrawal or nonrenewal of any Material Contract.
(d) Prior to the date hereof or with existing business plans previously disclosed to Nu Skin.Effective Time, neither the Shareholders nor the Company, without the prior written consent of the Parent, will:
Appears in 1 contract
Samples: Merger Agreement (Shaw Group Inc)
Conduct of Business Prior to the Effective Time. (a) Except as set forth in Section 5.01(a) of the Company Disclosure Schedule, between the date hereof and the Effective Time, the Company shall not, and shall not permit any Subsidiary to, conduct the Business other than in the ordinary course and consistent with the Company's and the Subsidiaries' past practice, except as expressly permitted by this Agreement or as agreed to by Nu Skin in writingAgreement. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Company Disclosure Schedule, the Company shall, and shall cause each Subsidiary to, (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice or existing business plans previously disclosed to Nu Skinpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use commercially its reasonable efforts, consistent with past practices and policies or existing business plans approved in writing by Nu Skin, best efforts to (A) preserve intact its business organization and the business organization of the Business, (B) keep available to Nu Skin Parent and Merger Sub the services of its employees, (C) except with respect to the intended purchase of "tail" director and officer insurance, continue in full force and effect without material modification all existing policies or binders of insurance currently maintained thereby for the Company, the Subsidiaries and/or the Business, and (D) preserve its current relationships with its customers, suppliers and other persons with which it has significant business relationships; (iv) exercise, but only after notice to Nu Skin Parent and receipt of Nu SkinParent's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases listed in Section 3.17(b3.18(b) of the Company Disclosure Schedule which by their terms would otherwise expire prior to the Effective Time; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which would reasonably be expected to could cause any representation or warranty of the Company or the Principal Shareholders to be untrue, incomplete or incorrect in any material respect or result in a breach in any material respect of any covenant made by the Company in this Agreement.
(b) Except as set forth in Section 5.01(b) of the Company Disclosure Schedule, prior to the Effective Time the Company shall not, and shall not permit any Subsidiary to, without the prior written consent of Nu SkinParent:
(i) permit or allow any of its assets or properties (whether tangible or intangible) to be subjected to any Encumbrance, do other than Permitted Encumbrances and Encumbrances that will be released at or prior to the Effective Time;
(ii) discharge or otherwise obtain the release of any Encumbrance or pay or otherwise discharge any Liability, other than current liabilities reflected on the Audited Balance Sheet and current liabilities incurred in the ordinary course of business consistent with past practice since December 31, 1996;
(iii) make any loan to, guarantee any Indebtedness of or otherwise incur any Indebtedness on behalf of any person;
(iv) fail to pay or otherwise discharge when due any Liability thereof;
(v) redeem, purchase or otherwise acquire any of its capital stock or declare, set aside, make or pay any dividends or distributions (whether in cash, securities or other property) to the holders of its capital stock or otherwise, other than dividends, distributions and redemptions declared, made or paid by any Subsidiary solely to the Company;
(vi) make any material changes in its customary methods of operation, or the customary methods of operation of the Business, including, without limitation, practices and policies relating to research and development, licensing, manufacturing, purchasing, inventories, marketing, selling and pricing;
(vii) merge with, enter into a consolidation with or acquire an interest of five percent or more in any person or acquire a substantial portion of the assets or business of any person or any division or line of business thereof, or otherwise acquire any material assets;
(viii) make any capital expenditure or commitment for any capital expenditure in excess of US$5,000 individually or US$50,000 in the aggregate;
(ix) issue any sales orders or otherwise agree to make any purchases involving exchanges in value in excess of US$5,000 individually or US$50,000 in the aggregate;
(x) sell, transfer, lease, sublease, license, sublicense or otherwise dispose of any properties or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets), other than the sale of inventories in the ordinary course of business consistent with past practice;
(xi) issue or sell any of its capital stock, notes, bonds or other securities, or any option, warrant or other right to acquire the same, or any other interest in it;
(xii) enter into any agreement, arrangement or transaction with any of its directors, officers, employees, shareholders or affiliates, or with any relative, beneficiary, spouse or affiliate of any such person;
(A) grant or announce any increase in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by it to any of its employees, including, without limitation, any increase or change pursuant to any Plan or (B) establish or increase or promise to increase any benefits under any Plan, in either case except as required by Law or any collective bargaining agreement and involving ordinary increases consistent with its past practices;
(xiv) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Subsidiaries or establish, adopt or enter into any employee benefit plan or agreement that, if previously established, adopted or entered into, would be defined as a "Plan" hereunder;
(xv) write down or write up (or fail to write down or write up in accordance with U.S. GAAP) the value of any of its Receivables or revalue any of its assets;
(xvi) amend, terminate, cancel or compromise any of its material claims or waive any other of its material rights;
(xvii) make any change in any method of accounting or accounting practice or policy used thereby;
(xviii) fail to maintain the Assets in accordance with good business practice and in good operating condition and repair;
(xix) allow any Permit or Environmental Permit that was issued or relates to it or otherwise relates to any Asset to lapse or terminate or fail to renew any such Permit or Environmental Permit or any insurance policy that is scheduled to terminate or expire within 45 calendar days of the Effective Time;
(xx) incur any Indebtedness in excess of US$5,000 individually or US$50,000 in the aggregate;
(xxi) amend, modify or consent to the termination of any Material Contract or its rights thereunder;
(xxii) amend or restate its charter or bylaws (or similar organizational documents);
(xxiii) terminate, discontinue, close or dispose of any plant, facility or other business operation, or lay off any employees, or implement any early retirement, separation or program providing early retirement window benefits within the meaning of Section 1.401(a)-4 of the Regulations or announce or plan any such action or program for the future;
(xxiv) make any charitable contribution;
(xxv) disclose any secret or confidential Intellectual Property (except by way of issuance of a patent) or permit to lapse or go abandoned any Intellectual Property (or any registration or grant thereof or any application relating thereto) to which, or under which, it has any right, title, interest or license;
(xxvi) make any express or deemed election or settle or compromise any liability, with respect to its Taxes;
(xxvii) take any action which could reasonably be expected to result in any damage, destruction or loss with respect to any of the things enumerated Assets which in clauses the aggregate have a replacement cost of more than US$25,000 , whether or not any such potential or actual damage, destruction or loss shall have been covered by insurance;
(ixxviii) through (xxiv) and clause (xxvii) of the second sentence of Section 3.10 of this Agreement or take any action which could reasonably be expected to result in a Material Adverse Effect.; or
(cxxix) For the period from the date hereof through the time agree, whether in writing or otherwise, to take any of the Closingactions specified in this Section 5.01 or grant any options to purchase, rights of first refusal, rights of first offer or any other similar rights or commitments with respect to any of the Company covenants and agrees to maintain the levelactions specified in this Section 5.01, mix and quality of inventories consistent with those generally maintained except as expressly contemplated by the Company prior to the date hereof or with existing business plans previously disclosed to Nu Skinthis Agreement.
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